Christopher McInnes v Fletcher International Exports Pty Ltd

[2020] FWC 1491

[2020] FWC 1491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Christopher McInnes
v
Fletcher International Exports Pty Ltd
(U2019/12118)

COMMISSIONER CAMBRIDGE SYDNEY, 25 MARCH 2020

Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Christopher McInnes (the applicant) and the respondent employer is Fletcher International Exports Pty Ltd (the employer).

[2] The application was lodged with the Fair Work Commission (the Commission) at Melbourne on 31 October 2019. The application indicated that the date that the applicant’s dismissal took effect was 26 September 2019. Therefore, the application was made some 14 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] On 8 November 2019, the employer filed a response to the application (Form F3) which identified a jurisdictional objection to the application on the basis that the application, made on 31 October 2019, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).

[4] Conciliation of the matter that had been listed for 25 November 2019, did not proceed because the employer requested that the out of time objection be determined as a discrete initial matter. On 15 November 2019, Catanzariti VP sent a letter to the applicant which, in summary, required that the applicant provide documentary material upon which exceptional circumstances could be established in order to permit the matter to proceed over the out of time objection raised by the employer.

[5] On 5 December 2019, the applicant provided the Commission with a handwritten letter dated “19.11.19”, together with a Medical Certificate also dated 19 November 2019. The applicant provided these documents as material upon which he relied in opposition to the out of time objection. However, the handwritten letter from the applicant stated inter alia, that he did not give permission for this letter or information to be shared with any other Parties including the employer.

[6] On 11 December 2019, the applicant sent an email to the Chambers of Catanzariti VP which attached another handwritten letter dated “9.12.19”. Subsequently the applicant provided the Chambers of Catanzariti VP with an email which confirmed that the handwritten letters could be provided to the employer.

[7] On 13 December 2019, the contested out of time objection to the application was allocated to the Commission as currently constituted for determination.

[8] On 19 December 2019, the Commission convened a telephone Pre-Hearing Conference during which the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the Parties’ respective positions regarding the out of time objection.

[9] In due course the Parties filed their respective documentary materials. Further, both Parties have confirmed that they were content for the out of time objection to be determined upon the documentary material which had been filed, and without any requirement for a Hearing.

Relevant Factual Background

[10] The applicant had worked for the employer for a little more than two years. The applicant was engaged as a Meat Worker at the employer’s meat processing plant located at Dubbo, New South Wales. The employer has approximately 700 employees.

[11] The applicant was dismissed for allegedly refusing to comply with the reasonable and lawful instructions of the employer. Apparently, the applicant refused to remove gloves that he was wearing as personal protective equipment. However, the employer was apparently trialling a new process for better detection of contaminants in certain of its products. The trial process required relevant employees, including the applicant, to not wear their gloves for a temporary period when handling certain product.

[12] On 26 September 2019, the Production Manager advised the applicant to remove the gloves that he was wearing, and the applicant did not comply with the instructions of the Production Manager. The Production Manager then advised the applicant that he was summarily dismissed for serious misconduct.

[13] On 31 October 2019, the applicant filed his claim for unfair dismissal remedy which was made 14 days late.

The Applicant’s Case in Support of an Extension of Time

[14] The applicant provided material in the form of a mixture of assertions of fact and submissions contained in various handwritten documents. In addition to the two handwritten documents that were sent to the Chambers of Catanzariti VP and respectively dated “19.11.19” and “9.12.19” the applicant provided a further undated handwritten document that was sent to the Commission on 24 January 2020. This material represented the applicant’s case in support of an extension of time and his opposition to the out of time objection raised by the employer.

[15] A significant amount of the material provided by the applicant involved issues relating to the circumstances surrounding his dismissal and his employment more generally, as opposed to material that was directly connected with establishing exceptional circumstances in order to permit his application to proceed notwithstanding that it had been made out of time. The material provided by the applicant which traversed aspects of his dismissal including his apparent ignorance of any trial involving not wearing gloves, and the absence of any written advice of the reasons for dismissal, are matters that are relevant for the purposes of an elementary assessment of the merits of the application.

[16] The submissions made by the applicant were supported by a Medical Certificate dated 19 November 2019, and which, in totality stated, “This is to certify that Mr Christopher McInnes Has [sic] past medical history of depression and was treated under mental health treatment plan.” This Medical Certificate was provided to support the applicant’s submission that the reason for the delay in making the application was his state of mental health which he described as “clinical depression.” The applicant asserted that his state of mental health prevented him “from responding in the time frame.”

[17] The submissions made by the applicant stated that his depression caused him to “shut down completely” and made it “extremely hard to do the smallest tasks or care about priorities.” The applicant also mentioned that he experienced difficulties as a result of the financial impact of his dismissal.

[18] In respect to the merits of his unfair dismissal, the applicant stated that the application was “…definitely justified due to the severity harshness and unfairness of being terminated for simply asking about rights to wear protective clothing…”.

[19] In summary, the applicant provided material which asserted that the reason for the delay with filing his unfair dismissal claim involved his state of mental health whereby his depression was said to have prevented him from making the application within time. Further, the applicant asserted that there were identifiable merits in respect to the application if it was permitted to proceed to Hearing and Determination. This material, when considered in its totality, provided by way of implied submission, that exceptional circumstances existed such that an extension of time for the lodgement of the claim for unfair dismissal should be granted.

The Employer's Case in Opposition to an Extension of Time

[20] The submission material provided on behalf of the employer commenced by asserting that the applicant had not provided any medical evidence of any kind which explained how the applicant’s alleged “clinical depression” prevented him from making his application during the 21 day period after his dismissal took effect. Further, the employer’s submissions referred to other cases where medical conditions were used to establish the existence of exceptional circumstances, and in these cases medical evidence was provided in the form of witness statements and/or medical records. The employer submitted that no such evidence had been provided in this case.

[21] The employer provided further submissions which rejected two further matters that the applicant mentioned as potentially relevant to provide explanation for the delay in making his unfair dismissal application. In this regard, the employer rejected any reliance upon the applicant’s purported ignorance of the time limit and further, the applicant’s subsequent discovery of the employer altering its work-related policies or procedures was not a matter that was relevant to establishing the existence of exceptional circumstances.

[22] The submissions made on behalf of the employer also confirmed that the applicant was aware of his dismissal at the time that it took effect, 26 September 2019. Further, the employer submitted that the applicant took no action to dispute his dismissal before he filed his application late on 31 October 2019.

[23] In respect to the alleged merits of the application, the employer submitted that the applicant was dismissed as a direct consequence of his failure to comply with a repeated, lawful and reasonable instruction. Subsequently the applicant has asserted that the employer changed the rules back to the way they were following the termination of his employment. The employer submitted that this acknowledged that the applicant knew that there was a rule which he refused to follow, and that refusal led to his dismissal. The employer submitted that this factor regarding the merits of the application did not favour the applicant’s case or at very least was a neutral consideration.

[24] In summary, the submissions made by the employer asserted that as the application had been made out of time, and the applicant had failed to discharge the onus of establishing that exceptional circumstances existed, the Commission should not exercise the discretion to extend time. The employer submitted that the application should be dismissed accordingly.

Consideration

[25] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[26] In this case, the application was filed on 31 October 2019, which was some 35 days after the day on which the applicant’s dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 14 days after the expiry of the 21 day time limit.

[27] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[28] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[29] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[30] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[31] In this case the delay was 14 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 2 weeks in the context of a 3 week time limit could be described as not insignificant in the context of the statutorily prescribed time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[32] In this instance, the reason for the delay that was asserted by the applicant involved his state of mental health. The only evidence that the applicant provided about the state of his mental health was a very brief Medical Certificate dated 19 November 2019, which stated: “This is to certify that Mr Christopher McInnes Has [sic] past medical history of depression and was treated under mental health treatment plan.” Importantly, there was no medical evidence about exactly how the applicant’s “past medical history of depression”orhis treatment “under mental health treatment plan” provided incapacity which prevented the applicant from making his unfair dismissal claim at some time earlier than 31 October 2019.

[33] The applicant asserted that his “clinical depression” made it hard for him to do the smallest tasks or to care about priorities. However, the applicant did not provide any medical evidence which verified that the state of the applicant’s mental health in the period between his dismissal and the filing of the application for relief from unfair dismissal actually prevented him from making the application at some earlier time. In the absence of this evidence, the Commission can only wonder as to why the applicant was capable of making the unfair dismissal claim on 31 October 2019, but his state of mental health somehow prevented him from making an application before that time.

[34] Although the Commission may have great sympathy for the applicant or any person suffering a mental illness, there must be evidence of some link between the applicant’s state of mental health and the asserted incapacity to make the unfair dismissal application. The applicant obviously had the capacity to make the application on 31 October 2019, but he did not provide any evidence upon which to establish that the applicant’s state of mental health at any earlier time would have prohibited him from making a claim at an early time. In other words, what changed on or shortly before 31 October 2019 which enabled the applicant to make the unfair dismissal claim?

[35] On any reasoned and objective contemplation, the reason for the delay in making the application, namely, that the applicant had mental health issues, could not be sustained as sound, acceptable reason for delay. In simple terms, the applicant had mental capacity demonstrated by his application to the Commission on 31 October 2019, but there was no evidence to provide proper explanation of any incapacity before that time.

[36] Consequently, when the reason for the delay is carefully and objectively considered, it unfortunately does not provide a sound and acceptable reason upon which to establish a link between the applicant’s “clinical depression” and any medical incapacity to make the claim at an earlier time.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[37] The applicant first became aware of his dismissal on 26 September 2019, when he was verbally advised of termination for serious misconduct. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[38] The applicant did not take action to dispute his dismissal prior to making the late unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[39] There was a paucity of evidence as to the details of any prejudice. No submissions were made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.

Subsection 394 (3) (e) - The Merits of the Application

[40] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.

[41] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, there was no evidence provided which established that the unfair dismissal claim was entirely without some potential for success, or that it contained some vital flaw which would render it open to the prospects of summary disposal.

[42] There was unchallenged submission material from the applicant that his dismissal arose from his concerns about wearing personal protective equipment in the form of gloves, and that he was not provided with any written reasons for dismissal. These matters would be suggestive of merit of the application.

[43] On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with identifiable prospects for success. Consequently, the logical consideration of this factor would provide support for the granting of an extension of time.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[44] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[45] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[46] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2and the following paragraph from that Decision is particularly helpful:

“[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.” 3

Conclusion

[47] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 14 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[48] The reason for the delay has involved the applicant’s state of mental health. However, there has been no evidence provided which could enable the Commission to safely link the applicant’s state of mental health with incapacity that prevented an earlier filing of the application. Upon careful consideration, the reason for delay could not represent a sound and acceptable reason for the application to have been made after the 21 day time limit had elapsed.

[49] The other factors under consideration, other than the merits of the application, either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. There were identifiable potential merits of the application, and this factor has provided considerable assistance for the exercise of the discretion to extend time.

[50] Consequently, in this instance the Commission has been required to carefully evaluate and balance the more significant competing factors whereby there was not an acceptable reason for the delay in filing the application, but the application had recognisable merits and identifiable potential for success. In many respects, it has been very regrettable and somewhat disconcerting that the applicant did not provide more substantial medical evidence rather than rely upon the very brief Medical Certificate dated 19 November 2019.

[51] On balance and having particular regard for the absence of any satisfactory reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was an unfortunate absence of evidence to provide sound and proper justification for the Commission to exercise the discretion to extend time.

[52] An Order [PR717652] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR717651>

 1   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.