Arch v Insurance Australia Group Services Pty Limited
[2020] FWCFB 601
•12 FEBRUARY 2020
| [2020] FWCFB 601 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Shane Arch
v
Insurance Australia Group Services Pty Limited
(C2019/7126)
VICE PRESIDENT HATCHER | MELBOURNE, 12 FEBRUARY 2020 |
Appeal against decision [2019] FWC 7527 of Deputy President Lake at Brisbane on 31 October 2019 in matter number C2019/3223.
Introduction
[1] Mr Shane Arch has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Lake issued on 31 October 2019 1 (decision) in which he refused to grant Mr Arch an extension of time pursuant to s 366 of the Fair Work Act 2009 (FW Act) to file a general protections application pursuant to s 365. Mr Arch contends on a number of bases that the decision was in error.
[2] Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) relevantly provides that a notice of appeal under s 604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. Mr Arch lodged his notice of appeal at 12.03am on 22 November 2019, the 22nd day after the decision was published. Accordingly, in addition to permission to appeal, Mr Arch requires an extension of time pursuant to rule 56(2)(c).
[3] As stated at the outset, the decision was made pursuant to s 366 of the FW Act. Section 366(1) requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Mr Arch’s application was not filed within this 21-day time period, and it was therefore necessary for him to obtain an extension of time under s 366(2) in order to make his application. Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
(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.
Factual background
[4] It is not in dispute that the respondent to the appeal, Insurance Australia Group Services Pty Limited (IAG), dismissed Mr Arch from his employment effective from 30 April 2019. The 21-day time period to file a general protections application in relation to this dismissal therefore expired at midnight on 21 May 2019. At 2.59am on 22 May 2019, Mr Arch sent an email to the Melbourne registry of the Commission which stated (omitting formal parts):
“I am hoping to be able to confirm my 21 day window. I will resubmit as soon as the online lodgement tool is back open at 6.30am.”
[5] The email also contained a screenshot of the Online Lodgment Service page on the Commission’s website. The screenshot showed that the time and date on the computer on which it was taken was 11.37pm on 21 May 2019, and the page at that time included the following statement (italics and underlining added):
“Service currently under maintenance
The Commission’s Online Lodgment Service is currently undergoing scheduled maintenance.
During this time you can still lodge an application by downloading the relevant Form. This application can be submitted to your local Commission office by email, fax and during business hours over the phone or the counter.
Email, phone, fax and address details are available on the Commission offices page [sic]. Otherwise you might like to wait until the Online Lodgment Service is available again (if this does not negatively affect any applicable timeframes for the application you are considering).”
[6] The email also attached a copy of the Commission’s Form F8, which is the standard form for making a general protections dismissal application.
[7] At 3.31pm on 22 May 2019, Mr Arch lodged 15 documents with the Commission, which were classified in the Commission’s computerised file system (CMS) as being in the category and code of “General Protections” and being in the type “s.365 – Application to deal with contraventions involving dismissal”. The documents included the following:
● A document described in CMS as an “Incomplete application”, which consisted of a substantially completed Form F8 general protections dismissal application which omitted the first three of eight pages. The application acknowledged that it was not filed within the 21-day time period and gave an explanation for this, including that Mr Arch had engaged with his employer on 17 May 2019 in an attempt to resolve his dispute, and that this had caused him to delay attempting to file his application until late on the final day, at which time the Commission’s online lodgement portal was down for maintenance. The partial application identified the remedies he sought. In relation to the alleged contravention of the FW Act upon which he relied, the application stated: “This section will be updated pending return commentary by my employer. A final complete application will be submitted by Wednesday, 29 May 2019”. The document was signed by Mr Arch and dated 21 May 2019.
● A copy of the IAG Enterprise Agreement 2016.
● A copy of IAG’s letter dated 30 April 2019 terminating Mr Arch’s employment.
● Various letters, emails and other documents passing between Mr Arch and IAG, and IAG and its workers’ compensation insurer, generally attesting to an ongoing employment dispute between Mr Arch and IAG from late 2017 arising from a restructure of positions and Mr Arch’s subsequent absence from work due to mental health issues.
[8] At 3.37pm, Mr Arch sent all his “supporting documents” (that is, all the above documents except the “incomplete application”) to the Commission again, contained in a single PDF document.
[9] CMS records that at 12.30pm on 23 May 2019, Mr Arch paid the Commission by credit card the amount of $71.90, which payment was recorded as “Fee payment for s.365 – Application to deal with contraventions involving dismissal”. This payment was made over the telephone, and it is likely that the Commission initiated the telephone discussion, since CMS records that a staff member in the Commission registry spoke to Mr Arch at about the same time, explained the process to him and advised that his completed application would need to be returned within 14 days. The CMS notation records that Mr Arch said that he understood and advised that he would have a completed application by 29 May 2019.
[10] Very shortly afterwards, at 12.43pm on 23 May 2019, the Commission sent a letter by email to IAG (addressed to the IAG manager who had signed Mr Arch’s termination letter) which, omitting formal parts, stated:
“Application for General Protections Dispute
Title: Arch, Shane v IAG
Fair Work Commission Matter Number: C2019/3223
The Fair Work Commission (the Commission) has received a general protections dispute application from Mr Shane Arch in relation to their employment with IAG.
The Commission is currently awaiting further information from the applicant in relation to this application. This application cannot be progressed at this time.
If the necessary information is not provided, the application may be dismissed. If the Commission dismisses the application you will be notified.
If the application is able to be progressed you will receive a letter from the Commission explaining the next stage in the processing of the application.
Please note that the Commission has made no assessment of the merits, or otherwise, of the application and you are not required to do anything at this stage.
For more information you can telephone the Commission on 1300 799 675 or go to
[11] There was thereafter considerable delay on Mr Arch’s part in filing his completed application. On 4 June 2019, IAG was sent another letter by email containing the same text as the 23 May 2019. On 6 June 2019 Mr Arch advised that he had a meeting with a legal representative and would lodge his completed application after the meeting. On 11 June 2019, Mr Arch called the Commission to advise that he would file the completed application in the next 24-48 hours, and he wanted to ensure his matter was not dismissed until then. On 13 June 2019, a Commissioner staff member contacted Mr Arch and left a voice message which is noted as being to the following effect:
“Please advise the Commission has not received a completed application form. Original lodgment is missing pages 1, 2 and 3. Please also discuss if application has been lodged out of the 21 day time frame (appears to have been as per date on termination letter) matter may need to proceed to EOT hearing where A can provide their reasons for late lodgment - Portal maintenance. If completed application is not received in 7 days matter may be referred to member to be dismissed.”
[12] On the same day, Mr Arch was sent a letter which relevantly stated (italics and underlining added):
“Fair Work Commission Matter Number: C2019/3223
The Fair Work Commission (the Commission) received a general protections dispute application from you on 22 May 2019.
This application was incomplete with some sections on the Form F8 not completed. These sections will need to be completed and the Form returned to the Commission. A copy of the Form F8 filed by you is attached.
If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2019/3223.
In the absence of any advice from you within 7 days of the date of this letter, this application may be dismissed.”
[13] The same day, Mr Arch telephoned the Commission and advised that he still intended to proceed with the application and would send his completed form that night. On 20 June 2019, Mr Arch again telephoned the Commission and advised that he was in the process of “creating” his application and would lodge it the following day.
[14] The matter was then transferred from the Commission’s registry to Deputy President Kovacic, and on 21 June 2019 the Deputy President’s chambers sent the following email to Mr Arch (omitting formal parts, emphasis in original):
“C2019/3223 – Arch, Shane v IAG
Dear Mr Arch
I refer to the above matter and advise that it remains incomplete. Despite repeated attempts to contact you, the Commission has not received a completed Form F8 .
It is requested that a completed form be returned to the Commission by close of business on Tuesday 2 July 2019.
In the absence of any advice from you, the Deputy President will issue a public decision and order dismissing the application.
Alternatively if the you wish to no longer wishes to press the application [sic], it is requested that a Notice of Discontinuance is filed.”
[15] On 24 June 2019 Mr Arch advised by email that he apologised for “my struggles in filling in what is no doubt meant to be a simple form” and that his completed form would be sent in no later than close of business on 28 June 2019. On 2 July 2019 Mr Arch left a voicemail message saying that the form would be received that day. He did the same on 3 July 2019. On 4 July 2019 he sent in an email which stated:
“Please find attached an almost completed form. Since receiving medical treatment I have been able to keep calm and put everything together, so close to finishing. Attached is what I have completed to date, I am so embarrassed and apologetic, I wish I knew why this is so hard. I’ve attached a copy of a photo showing it’s completed, just needs to be in the form…
I will continue to put together and send through, only need a few hours to finish, I hope this is okay for now.”
[16] Attached to this email, among other things, was a modified version of the Form F8 which he had signed on 21 May 2019 and lodged on 22 May 2019. It included the first three pages and added, in respect of the alleged contravention, a lengthy response to various matters contained in his termination letter. On 5 July 2019, the Commission sent Mr Arch an email which, omitting formal parts, stated (italics and underlining added):
“The Fair Work Commission received an application from you on 22 May 2019, to deal with contraventions involving dismissal. Applications must be lodged within 21 Days of the dismissal taking effect. This matter has been lodged with the Commission outside of the 21 day statutory time frame.
We will be seeking the consent of the respondent to progress the matter to a conciliation teleconference in the first instance. If no consent is provided for conference at first instance then an extension of time hearing will be held. This process requires a Member of the Commission to consider and be satisfied that there are exceptional circumstances to allow the application to continue, taking into account:
● The reason for the delay
● Steps taken to dispute the dismissal
● Prejudice to the Employer including prejudice caused by the delay
● The merits of the application
● Fairness as between the person and other persons in a like position
The Commission will be in contact regarding how the matter will progress shortly.
If you have any questions regarding this, please call the General Protections Team on 1300 780 699.”
[17] An email to similar effect to the above, except that it omitted the emphasised part, was also sent to IAG. IAG consented to a conciliation conference occurring, and this was conducted on 2 September 2019 but did not resolve the dispute. The matter was then referred to the Deputy President Lake for determination as to whether Mr Arch should be granted an extension of time pursuant to s 366. In its submissions in relation to this issue, IAG submitted that the application had been lodged 44 days late. There was considerable delay in the process which was substantially caused by Mr Arch’s mental health issues, and a telephone hearing was eventually conducted on 2 October 2019. On 4 October 2019, Mr Arch filed evidence concerning his mental health condition, including a report from his clinical psychologist dated 3 October 2019. As earlier stated, the Deputy President issued his decision on 31 October 2019.
The decision
[18] In his decision the Deputy President identified the issue to be determined by him as follows:
“[2] The Applicant was employed by Insurance Australia Group Services Pty Ltd (the Respondent or the Employer) on 17 July 2006 and was dismissed on 30 April 2019. His completed application under s. 365 of the Act was not lodged in the Commission until 4 July 2019. The period of 21 days ended at midnight on 21 May 2019. The application was therefore lodged 44 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondent opposes the granting of an extension of time.”
[19] After summarising the principles relevant to the grant of an extension of time pursuant to s 366, the Deputy President dealt with each of the mandatory considerations specified in s 366(2) in turn. In relation to s 366(2)(a), the Deputy President first stated, again, that Mr Arch’s s 365 application was 44 days late, and then said:
“[9]…The Applicant had previously sent in an incomplete application, which was filed with the Commission on 22 May 2019. Had this been correctly and completely submitted, it would have been only one day late.”
[20] The Deputy President considered, and rejected, a number of matters advanced by Mr Arch as constituting reasons for his delay, including his mental health and the fact that the Commission’s online lodgement portal was down during the late evening of 21 May 2019. In relation to the former matter, the Deputy President did not accept that this prevented Mr Arch from filing his application in time. 2 In relation to the latter, the Deputy President said:
“[14]… regarding the Commission’s e-portal undergoing maintenance on the evening of 21 May 2019, I can confirm that this occurred; however, this did not prohibit the Applicant from filing an application at any stage before this period, and did not prevent the Applicant from filing an incomplete application on 22 May 2019. He could have filed a complete application on this date as the maintenance only lasted a matter of hours.”
[21] The Deputy President concluded that there was no reasonable or acceptable explanation for the delay, and that this weighed strongly against an extension of time. 3 In relation to s 366(2)(b), the Deputy President accepted that Mr Arch had during the 21-day period challenged his termination of employment, and found that this weighed in favour of the grant of an extension.4 As to s 366(2)(c), the Deputy President said:
“[17] The Employer maintains that prejudice would be experienced by it as it now has two employees who would be key witnesses who were involved in the management of the Applicant’s employment who have ceased working for the Employer. They are either on extended leave or are no longer employed by the Respondent. If the Applicant had filed his application within the statutory period they would have had the opportunity to obtain responses from these employees prior to their departure. Forty four days is not an insignificant period of time. I therefore consider there to be at least some prejudice to the employer if an extension of time is to be allowed.”
[22] In relation to s 366(2)(d) and (e), the Deputy President considered these to be neutral factors. The Deputy President concluded:
“[23] Having regard to all of the matters that I am required to take into account under s. 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. Aside from the Applicant having taken steps to contest the dismissal, none of the factors in s 366(2) of the Act particularly weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.”
Submissions
[23] Mr Arch was self-represented. His notice of appeal did not identify any grounds of appeal. He submitted, in broad summary, that the Deputy President was wrong to not grant him an extension having regard to his mental health condition and its effect on his capacity to concentrate and meet deadlines. We will not attempt to summarise the detail provided by Mr Arch in connection with this for privacy reasons, but we note that in this connection he said in his written submissions:
“It is correctly noted that I had not been mentally able to articulate adverse action had occurred as a result of a workplace right. I can confirm that as a result of lodging a workplace right in December 2017 I was subject to adverse action being taken against me in form of:
● Dismissing my employment
● Injuring me during my employment
● Altering my employment position to my detriment
● Discriminating between me and other employees.”
[24] Mr Arch also explained in his oral submissions that he had attempted to file his general protections dismissal application on 21 May 2019, but the online lodgement portal was closed for maintenance.
[25] IAG submitted:
● Mr Arch had been terminated solely for misconduct;
● his incomplete application was missing several pages, did not identify the respondent and did not articulate his claim;
● IAG was not served with a copy of the incomplete or complete application until 5 July 2019;
● the notice of appeal was filed outside the statutory time limit, and no reason had been advanced as to why an extension of time should be granted;
● no appeal grounds were included in the notice of appeal;
● Mr Arch had identified no case for the grant of permission to appeal nor any instance of appealable error in the decision;
● the Deputy President had properly taken into account all the matters in s 366(2), and there was no evidence that the discretion was not properly exercised;
● the Deputy President was correct to conclude that Mr Arch’s mental health condition was not such as to prevent him from filing his application in a timely fashion; and
● the Deputy President was correct to conclude that the delay in filing the application had caused prejudice to IAG, in that on or after 30 May 2019 a number of IAG’s employees who had been involved in relevant dealings with Mr Arch had left IAG’s employment.
Consideration
[26] At the outset, it is necessary to state that we are wholly satisfied that Mr Arch has at all relevant times been suffering from a serious mental health condition which originated well before his dismissal. We reach this conclusion on the basis of documentary material concerning the dealings which various persons have had with Mr Arch over this period, medical reports, and Mr Arch’s presentation at the appeal hearing and his own description of his mental state. Again, for privacy reasons, we do not propose to describe in any detail Mr Arch’s condition and the behavioural symptoms he has displayed. It is sufficient to refer briefly to two medical reports. The first is a report of Dr Chiara Paganini, Clinical Psychologist, dated 3 October 2019, which was before the Deputy President. Dr Paganini diagnosed Mr Arch as suffering from Generalised Anxiety Disorder and Major Depressive Disorder, for which he had been under treatment for over a year. The second was a report of Mr Arch’s general practitioner, Dr Cathy Grech, dated 8 November 2019 which was filed in the appeal proceedings. The report states:
“My name is Dr Cathy Grech, and I have been Shane's General Practitioner since March 2018 and have seen him regularly since. I am aware that Shane's recent hearing to determine whether he had valid reasons for not submitting his application on time was declined and Shane is currently undertaking appeal processes.
During the period of time Shane was writing his application, he was extremely agitated and anxious – so much so that his original hearing in August was postponed due to his behaviour (I am aware of this as I was contacted by [name omitted] regarding Shane's behaviour that day). I also was very concerned about his mental state in the weeks leading up to that and I had referred him to an semi-acute psychiatric service for review/opinion (Epion)- Shane saw that team on 4 occasions from April to August 2019 for support and medication review/change. Shane's symptoms at that time made it very difficult for him to concentrate and complete the application on time, and I do believe he has valid reasons for not being able to do so. Your consideration of the situation would be greatly appreciated when reviewing Shane's appeal at this time.”
[27] Our conclusion concerning Mr Arch’s state of mental health is relevant to two aspects of this appeal proceeding, as we explain below.
[28] The initial issue which requires consideration is whether Mr Arch should be allowed an extension of time to file his appeal pursuant to rule 56(2)(c) of the FWC Rules. We have decided to grant this extension, for three reasons:
(1) The delay was extremely short, being only a few minutes.
(2) Mr Arch’s capacity to file his appeal notice in time was adversely affected by his mental health condition.
(3) The appeal, for reasons which we shortly explain, has substantive merit.
[29] We have earlier set out the essential features of the Deputy President’s decision. It is apparent that the decision proceeded on the factual premise that Mr Arch lodged his general protections dismissal application 44 days late. At the hearing of the appeal, although the issue was not squarely raised by Mr Arch in his notice of appeal or submissions, we raised with IAG the question of whether this factual premise was correct or, alternatively, whether Mr Arch was for the purpose of s 366 to be regarded as having lodged his application on 22 May 2019, only one day late. IAG, as earlier outlined, maintained the position that the application was 44 days late, having been filed in complete form only on 4 July 2019.
[30] We have come to the conclusion that the Deputy President erred in approaching Mr Arch’s application for an extension of time pursuant to s 366 on the basis that he was 44 days, and not only one day, out of time. We have earlier set out in detail the relevant chronology of events. The Deputy President’s analysis of the issue to be determined proceeded on the implicit premise that, because what was lodged by Mr Arch on 22 May 2019 was not a complete application in accordance with the prescribed Form F8, it was no application at all.
[31] This was not the correct approach. A similar issue was dealt with in the Full Bench decision in Hambridge v Spotless Facilities Services Pty Ltd, 5 where concerned a situation where a dismissed employee attempted to file an unfair dismissal remedy application but used the wrong form in doing so. The Full Bench said:
“[26] … The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt 3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.”
[32] An examination of the substance, as distinct from the form, of what Mr Arch did on 22 May 2019 makes it clear that he lodged a general protections dismissal application. We have described the documents which Mr Arch lodged on 22 May 2019. In short, he electronically filed a partial Form F8 missing (we presume by accident) the first three pages. The partial document leaves no room for doubt that it was intended to be a general protections dismissal application. Although, because of the missing pages, the document did not identify the respondent or the dismissal the subject of the application, the accompanying documents (in particular the termination letter) made it clear that the application concerned Mr Arch’s dismissal from his employment with IAG on 30 April 2019.
[33] We have set out the chronology of what followed in some detail above. It is clear that the Commission’s registry immediately proceeded on the basis that Mr Arch had filed a general protections dismissal application on 22 May 2019. It was recorded as such on CMS and assigned a matter number. The following day, the Commission obtained from Mr Arch the prescribed filing fee for a general protections dismissal application and informed IAG in writing that it had received such an application in respect of Mr Arch’s former employment with IAG. Subsequent advice to Mr Arch about the need for him to provide a complete Form F8 proceeded, as we have earlier set out, on the express premise that Mr Arch had filed a general protections dismissal application on 22 May 2019, albeit an incomplete one. Mr Arch was repeatedly advised by the Commission that if he did not file a completed document, he was at risk of having his application dismissed – advice that was premised on there being an extant application capable of being dismissed. He was never advised (prior to the decision) that the Commission did not regard him as having filed an application for the purpose of s 366 on 22 May 2019 with the consequence that time was still running for the purpose of that provision. In the circumstances described, it would be unconscionable for the Commission to subsequently proceed on the basis that Mr Arch did not file any application for the purpose of s 366 until 4 July 2019.
[34] It is undoubtedly the case that Mr Arch did not file an application in the prescribed form on 22 May 2019. Section 585 of the FW Act requires that “An application must be in accordance with the procedural rules (if any) relating to applications of that kind.” But, as has been explained in a number of Full Bench decisions, 6 non-compliance with s 585 does not invalidate an application because the FW Act confers discretionary procedural powers as to how to deal with such an application. First, immediately following s 585, s 586 provides:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
[35] Second, s 587(1)(a) provides that the Commission may dismiss an application if it is not made in accordance with the FW Act. Thus, where a defective application is filed, it may be the subject of correction, waiver or dismissal. It may also be discontinued under s 588. But the FW Act does not disclose an intention to treat it as being entirely invalid and of no effect. The advice given by the Commission staff to Mr Arch from 22 May 2019 until 4 July 2019 (when he finally provided an application in proper form) was at all times consistent with this legal position.
[36] Because the Deputy President proceeded on the wrong factual premise, his exercise of the guided discretion pursuant to s 366(2) miscarried. There is a big difference between an application that is one day late and one that is 44 days late. In respect of the five mandatory considerations prescribed by s 366(2), the Deputy President determined that those in paragraphs (a) and (c) weighed against the grant of an extension, paragraph (b) weighed in favour of an extension and the other matters were neutral. The findings which the Deputy President made in respect of paragraphs (a) and (c) were explicitly based on there having been a 44-day delay and are thus vitiated by the incorrect factual premise.
[37] In the circumstances, we consider that permission to appeal should be granted. The decision proceeded upon a significant error of fact, and the outcome manifested an injustice to Mr Arch. For the reasons we have given, the appeal will be upheld and the decision quashed.
Re-determination of the extension of time application
[38] We consider that the procedurally convenient course is for us to re-determine, pursuant to s 607(3)(b) of the FW Act, the application for an extension of time under s 366(1)(b) on the basis of the evidentiary material that was before the Deputy President and the further material concerning Mr Arch’s medical condition that was placed before us. We proceed on the basis that Mr Arch’s application was filed on 22 May 2019, one day out of time. We will consider each of the mandatory s 366(2) matters in turn.
Reason for the delay - s 366(2)(a)
[39] We infer that two matters caused Mr Arch to delay preparing and attempting to file his application until late on 21 May 2019, the 21st day since his dismissal: first, his desire to try initially to resolve his dispute with IAG directly and, second, his mental health condition, which made it difficult for him to grapple with an issue which he found to be intensely distressing. We are entirely satisfied, based on his signature and date on the document ultimately filed, that Mr Arch did actually prepare his application on 21 May 2019. It is also clear that Mr Arch knew that there was a 21-day time period requirement which ended at midnight on 21 May 2019 and that he intended to lodge his application shortly before that time. His failure to do so can be explained by the fact that the online lodgement portal was closed for maintenance purposes.
[40] This did not necessarily prevent Mr Arch from lodging his application since, as his screenshot of the relevant webpage disclosed, it was at least possible for him to file the application as an attachment to an email sent to a Commission office. However Mr Arch’s email sent at 2.59am on 22 May 2019 indicates that he believed that the closure of the online lodgement portal meant that his “21 day window” would remain in place while the portal remained under maintenance. It is possible that Mr Arch misread the advice on the webpage which we have earlier put in emphasis – that is, he may have read the words “(if this does not negatively affect any applicable timeframes for the application you are considering)” as if the word “if” was not there. We would also infer from the evening’s events that Mr Arch was engaged in endeavouring to lodge his application (or was at least waiting for the online lodgement portal to re-open) from about 11.30pm on 21 May 2019 to about 3.00am on 22 May 2019. This bespeaks of genuine effort to lodge his application.
[41] We do not know precisely when the online lodgement portal became accessible again. However his filing of his incomplete application at 3.31pm on 22 May 2019 was, we consider, reasonably prompt in the circumstances. We conclude that there was a reasonable explanation for the delay arising from the peculiar combination of circumstances we have described, and this weighs in favour of the existence of the requisite exceptional circumstances.
Action to dispute the dismissal - s 366(2)(b)
[42] The Deputy President’s conclusion in respect of this consideration was not affected by the error in respect of the length of the delay. We agree with and adopt his conclusion that Mr Arch challenged his dismissal before the 21-day period expired, and that this weighs in favour of the requisite exceptional circumstances.
Prejudice to the employer - s 366(2)(c)
[43] IAG contended that it was prejudiced because of the departure from its employ, on or after 30 May 2019, of a number of persons involved in its dealings with Mr Arch prior to his dismissal. However, as we have set out, the application was filed on 22 May 2019 and IAG was informed that Mr Arch had made the application on 23 May 2019. Accordingly we do not accept that the delay has given rise to any prejudice to IAG. In the circumstances of the short delay involved, we will treat this as a neutral consideration.
Merits of the application - s 366(2)(d)
[44] We agree and adopt with the Deputy President’s conclusion that this should be treated as a neutral consideration. We note that the Deputy President reached this conclusion notwithstanding that he found that Mr Arch had not identified the workplace right or protected attribute he relied upon. 7 The position now, however, is that Mr Arch as earlier explained was able to articulate the basis of his general protections case in his appeal submissions. This reinforces the conclusion that this is at least a neutral consideration.
Fairness as between the person and other persons in a similar position - s 366(2)(e)
[45] We agree with and adopt the Deputy President’s conclusion that this is a neutral consideration.
Conclusion
[46] Having regard to the above matters, we have formed the conclusion that the requisite exceptional circumstances exist. We have determined to exercise our discretion under s 366(2) in favour of the grant of an extension for the reasons that the delay was short, Mr Arch was subject to a relevantly deleterious mental illness at the relevant time, and there was a reasonable explanation for the delay.
Orders
[47] We order as follows:
(1) We extend time for Mr Arch to file his appeal until 22 November 2019.
(2) Permission to appeal is granted.
(3) The appeal is upheld.
(4) The decision ([2019] FWC 7527) is quashed.
(5) We extend time for Mr Arch to file his general protections dismissal application until 22 May 2019.
(6) Mr Arch’s application (C2019/3223) is referred back to Deputy President Lake for further disposition in accordance with s 368 of the FW Act.
VICE PRESIDENT
Appearances:
S Arch on his own behalf.
M Smith on behalf of Insurance Australia Group Services Pty Limited.
Hearing details:
2020.
Melbourne (with video-link to Sydney):
5 February.
Printed by authority of the Commonwealth Government Printer
<PR716439>
1 [2019] FWC 7527
2 Ibid at [12]
3 Ibid at [14]
4 Ibid at [15]
5 [2017] FWCFB 2811
6 Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070; 241 IR 142 at [42]; Hambridge v Spotless Facilities Services Pty Ltd[2017] FWCFB 2811; 271 IR 360 at [27]-[31]; CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717 at [41]-[49]
7 [2019] FWC 7527 at [20]
3
4
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