Christopher Ott v TNT Australia Pty Ltd t/a TNT Australia Pty Ltd

[2019] FWC 4701

[2019] FWC 4701

FAIR WORK COMMISSION

DECISION

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

Christopher Ott
v
TNT Australia Pty Ltd t/a TNT Australia Pty Ltd
(U2019/309)

DEPUTY PRESIDENT SAMS SYDNEY, 8 JULY 2019

Application for an unfair dismissal remedy – application filed six days out of time – whether ‘exceptional circumstances’ exist to grant an extension of time – delay caused by psychological condition and employer’s failure to respond to amendment sought to termination letter – level of activity does not indicate an incapacity to file application – applicant’s criminal conviction irrelevant as to whether application was filed in time – exceptional circumstances not established – application dismissed.

BACKGROUND

[1] On 9 January 2019, Mr Christopher Ott filed on application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks a remedy for his alleged unfair dismissal as a Supervisor by TNT Australia Pty Ltd (the ‘respondent’ or ‘TNT’) on 13 December 2018. It will be immediately apparent that the application (Form F2) was filed 6 days outside the 21 day statutory time limit set out in s 394(2) of the Act; however, I note that Mr Ott’s representative at the time who filed the application, Mr Gary Pinchen, Agent, A Whole New Approach (‘AWNA’), wrongly claimed at Q1.4 that the application was filed within time. It will therefore be necessary, given the statutory mandate in s 396 (Initial Matters to be considered before merits), for the Commission to be satisfied that there were ‘exceptional circumstances’ which would allow Mr Ott’s application to be filed outside the 21 day time limit. Mr Ott (hereafter referred to as the ‘applicant’) presses for such an extension, and for a relevant order of the Commission.

[2] A telephone conciliation took place on 15 February 2019, but as no settlement of the applicant’s claim was able to be reached, the jurisdictional issue was referred to me for determination. Directions were issued in preparation for a hearing on 30 May 2019. An adjournment request was granted to allow the applicant time to obtain new representation, after Mr Pinchen had filed a Form F54 - Notice of Ceasing to Act - on 7 May 2019. At the hearing on 30 May 2019, the applicant represented himself. Ms C Tirado with Ms R Bullock appeared for the respondent. While this decision will obviously not deal with the substantive merits of the application, it is useful to ‘set the scene’ by giving a summary of the reasons for the applicant’s termination of employment. These are found in the applicant’s termination of employment letter of 13 December 2018. The letter reads, inter alia, as follows:

‘Following learning of your recent conviction for drug related offences, you were advised TNT was considering terminating your employment due to your inability to perform the inherent requirements of your role. You were given an opportunity to provide TNT with any additional information as to why your employment should not be terminated.

Whilst this is not intended to be a transcript of your response, in this meeting you provided us with your response as follows:

•  That your conviction does not affect the way you do your job and you can’t see why your conviction affects how you supervise your staff

•  That you were convicted of Supply prohibited drug of indictable quantity but an appeal has been lodged for the charge to be lessened to deemed supply of prohibited drug of indictable quantity

•  That you have been convicted of proceeds of crime and possession of prohibited drugs

•  You agreed given your position description indicates that integrity is required, that you could see how the business can say there is an issue in this area

•  You confirmed that you always look out for the Company’s position and would not pose a risk to security of freight

•  You agreed that from a reputation and brand point of view that TNT needs to ensure that both are protected and you can see how the business could be concerned about this area

•  You confirmed that you had advised two staff members outside of the management team and two employees whom you supervise about your conviction

We have given careful consideration to your responses and we do not believe that you would be able to perform your duties without posing significant risk to the integrity of freight processing and distribution. It is fundamental in a supervisory position to demonstrate lawful and ethical behaviour and maintain the security of potentially sensitive freight and the protection of the Company’s reputation. Furthermore, given there is knowledge of your conviction amongst other employees, the company is concerned about reputation risk and damage.

Given the circumstances, it has been decided to terminate your employment with TNT Australia Pty Ltd, with effect from today, 13 December 2018. You will be provided with four (4) weeks’ pay in lieu of notice.’

[3] Given that the applicant must address each of the matters the Commission must take into account when determining whether ‘exceptional circumstances’ are established to accept his unfair dismissal application out of time, I set out below, the relevant provision of s 394(3) of the Act:

‘(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.’

[4] Although the onus is on the applicant to establish ‘exceptional circumstances’, TNT made submissions on each of the criteria in s 394(3). I will summarise the parties’ respective positions under each component of s 394(3) of the Act.

Reasons for the delay (s 394(3)(a))

[5] The applicant’s primary reason for the delay in filing his unfair dismissal application was that he was suffering a significant mental condition after being stood down on 26 November 2018, having been convicted on 18 November 2018 of drug possession ‘deemed to supply and receipt of the proceeds of crime’.

[6] On 29 November 2018, the applicant was issued a ‘show cause’ letter which reads in part:

‘Due to the nature of the offence that you have been convicted of, the Company is concerned that you are unable to perform the inherent requirements of your role as PM Operations Supervisor without posing a significant risk to the integrity of freight possessing and distribution. It is fundamental in a supervisory position to demonstrate lawful and ethical behaviour and maintain the security of potentially sensitive freight and the protection of the Company’s reputation.

In addition, the Company understands that you may be incarcerated for an extended period of time following the sentencing of your conviction.

Accordingly, TNT has formed a preliminary view that your inability to perform the inherent requirements of your role will result in terminating your employment. Before we make a final decision on your continued employment you shall be afforded an opportunity to provide TNT with any additional information as to why your employment should not be terminated in relation to the above mentioned matter.’

[7] On the weekend immediately thereafter (1-2 December 2018), the applicant was admitted to hospital on referral from his Consultant Psychiatrist, Dr Luba Naaz, due to a deterioration in his mental health, and having unintentionally overdosed on his prescription medication for stress, anxiety and depression. The Doctor recommended a brief hospital admission ‘to keep him safe’.

[8] On 6 December 2018, Circle Bridge Legal provided a response to the ‘show cause’ letter on the applicant’s behalf, presumably after having received instructions from him. The applicant attended a meeting with TNT on 13 December 2018 and was informed of his dismissal due to his conviction for drug-related offences and his alleged inability to perform the inherent requirements of his job. Later that day, he contacted Circle Bridge Legal and was informed that an upfront fee of $10,000.00 would need to be paid if Circle Bridge Legal was to represent him in respect to an unfair dismissal claim. He could not afford to pay this amount.

[9] On 14 December 2018, the applicant rang Mr Scott Sullivan (Hub Operations Manager, TNT) to complain that his termination letter was incorrect in that it referred to his ‘conviction of proceeds of crime and possession of prohibited drugs’, when it should have read ‘charged with deemed supply’. Mr Sullivan advised him to contact HR (Ms Renee Bullock) and when he attempted to contact her, he was told she was on leave until 20 December 2018. On 17 December 2018, the applicant sent a text message to Mr Sullivan inquiring as to his final payment and amending the termination letter. The next day the applicant called the Commission to seek advice on how to proceed. He claimed he was told that the Commission could not provide him with legal advice, and that he would need to speak to an employment specialist, if he wished to proceed. On 19 December 2018, he called the Penrith Legal Aid Office and was referred to the Central Sydney Legal Aid Office. Two days later, he actually went to the Penrith Legal Aid Office regarding another matter.

[10] On 20 December 2018, the applicant sent a text message to Ms Bullock and an email to Mr Sullivan about the incorrect wording in his termination letter. On the weekend of 22-23 December 2018, he claimed he stayed in bed due to his depression. On 24 December 2018, he again sent a text message to Mr Sullivan querying his final payment figure, and on Christmas Day and Boxing Day (25 and 26 December 2018) he spent the time in bed with severe anxiety and depression, except for a two hour period where he watched his children open Christmas presents.

[11] On 27 December 2018, Mr Sullivan contacted the applicant advising him that he had passed on his concerns regarding the pay-out figure to TNT’s HR department. On 28 December 2018, the applicant contacted the General Manager, Mr Chris Lennox, to request certain documents. Later that day, he contacted the Central Sydney Legal Aid Office and was advised all of their solicitors were away until 7 January 2019. On 29, 30 and 31 December 2018, the applicant claimed he had stayed in bed all day.

[12] On 2 January 2019, the applicant contacted Ms Bullock and was told the termination letter would not be amended. He later contacted Mr Lennox to dispute this decision. The applicant claimed he then experienced a mental health breakdown and unintentionally overmedicated on his three prescriptions.

[13] On 4 January 2019, the applicant went to his sister’s house (as she worked in HR) to ask for her help in drafting a letter to TNT in an attempt to resolve his unfair dismissal. He requested a response from TNT by 11 January 2019, as he would be taking action with the Fair Work Ombudsman. On 7 January 2019, the applicant contacted the Penrith Legal Aid Office and scheduled an appointment for 16 January 2019. He said the next day, his condition worsened and he was forced to stay in bed. The applicant said that on 9 January 2019, he ‘found’ and contacted Mr Pinchen of AWNA who drafted and lodged his Form F2 – Unfair dismissal application – that day.

[14] The applicant provided a medical certificate from his GP, dated 21 February 2019, which read:

‘Mr Christopher Ott is my patient and he is under the care of a psychiatrist and psychologist. He is suffering from significant mental health condition and was unable to take any decision from mid december (sic) 2018 till january (sic) mid 2019.’

[15] The applicant said that another reason for the delay in filing his application was due to TNT failing to respond to him regarding amending his termination letter, despite his many attempts to contact TNT.

[16] TNT submitted that in light of the undisputed chronology of events, it is clear the applicant had the capacity to draft correspondence to the respondent, and could have lodged an unfair dismissal application within 21 days of his dismissal. While it might be said that the applicant’s text messages to Mr Lennox and Ms Bullock were him seeking an internal review of his dismissal, this did not prevent him from making his application within time; see: Nichols v Alsco[2019] FWC 1870.

When the person first became aware of the dismissal (s 394(b))

[17] It was common ground that the applicant was aware of his dismissal on the day it took effect (13 December 2018).

Any action taken by the person to dispute the dismissal (s 394(c))

[18] The applicant submitted he had made a concerted effort to dispute his dismissal both within the 21 days after the dismissal and after that date, by contacting lawyers, including Legal Aid Offices, and the respondent directly.

[19] TNT noted that the applicant had not sought to dispute the dismissal with the respondent, but only sought to amend the dismissal letter - not rescind it.

Prejudice to the employer (s 394(d))

[20] It was accepted by the respondent that TNT would not suffer any prejudice if the extension of time was granted.

The merits of the application (s 394(e))

[21] The applicant put that his unfair dismissal claim is one of substantial merit and deserves a detailed and thorough examination. It was said that the conduct for which he was dismissed (the criminal charge) did not occur during the course of employment; see: Deeth v Milly Hill Pty Ltd [2015] FWC 6422 (‘Deeth’). It was put that the allegations against him are not valid, given that they are not sound, well-founded or defensible. Out of hours conduct must be such that when viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; the conduct damages the employer’s interests; or the conduct is incompatible with the employer’s duty to an employee; see: Rose v Telstra Corporation Limited [1998] AIRC 1592.

[22] The applicant submitted that his drug conviction could not seriously cause damage to the employment relationship, given that TNT long knew of his arrest, the charges against him and possible conviction, but nonetheless allowed him to continue working for two years, without any complaint from customers. Indeed, during this period he was praised and promoted, indicating the drug conviction could not cause any serious damage to the employment relationship, or TNT’s relationships with customers.

[23] It was further submitted that the facts in Deeth involved conduct of a far more serious nature than here and involved serious reputational damage to the employer in a small town. That case is clearly distinguishable to the circumstances in this matter.

[24] TNT submitted that the applicant’s conviction posed a significant risk to the integrity of his role as a PM Operations Supervisor, which required him to supervise staff and behave akin to a role model for lawful and ethical behaviour and to ensure the security and integrity of freight processing, through TNT’s national and global distribution network. Further, while the applicant claims his criminal matters are private, he shared this information with others, thereby causing a further risk to the reputation of TNT.

Fairness as between the person and other persons in a similar position (s 394(f))

[25] The applicant referred to a similar case in which an extension of time was granted, where the reasons for delay were severe depression, resulting in the applicant’s hospitalisation and which was exacerbated by the dismissal occurring just before the Christmas break; see Ovenden v Fortezza Pty Ltd t/a High Country Automotive Group[2010] FWA 3863.

[26] TNT submitted that the applicant had been treated in a fair and reasonable manner, consistent with other employees who are unable to perform the inherent requirements of their role.

Oral evidence

[27] The applicant was the only person to provide oral evidence in the proceeding. As his cross examination largely focused on reiterating the steps and activity he had undertaken after his dismissal, I do not repeat it.

[28] The applicant said that he had not discussed the lodgement of an unfair dismissal application with Circle Bridge Legal and he honestly believed the 21 days included public holidays. He said throughout this time, his mental state was not very good.

[29] The applicant claimed he was not sure of an expiry date, although he had wanted to find out if he was dismissed fairly or not. The applicant agreed that apart from his hospitalisation over 1-2 December 2018, he had not been hospitalised since. However, he claimed he was in bed crying for most of the 21 days after his dismissal. He later agreed he was not in bed for the entire period. He was asked about his phone records which show phone calls on 20 December 2018 in or around Westfield Mount Druitt.

[30] In answer to a question from me about his phone call to the Commission, the applicant confirmed that he was told the Commission cannot give advice. However, no one asked him about filing an application, or whether he had done so.

CONSIDERATION

[31] In Tamu v Australia for UNHCR [2019] FWCFB 2384, a Full Bench of the Commission (albeit in s 366(2) of the Act) recently summarised the relevant principles to have regard to in applications of this kind, at [16] – [20] as follows:

‘[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act 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.”

[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

“[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 time limit in s.366(1)(a) is not an exceptional circumstance.”

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted)

[32] It must also be stressed that a finding of ‘exceptional circumstances’ is a classic exercise of discretion, as is apparent from the inclusion of the word ‘may’ in s 394(3). The discretion is only enlivened if the Commission is satisfied there are ‘exceptional circumstances’. That test has been said to be a ‘high hurdle’ for an applicant to overcome when seeking an extension of time; see: Qantas Airways Limited v McCrae [2017] FWCFB 4033. However,in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, Lawler VP concluded that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’, in that it would be sufficient for an applicant to meet the relatively high hurdle of ‘exceptional circumstances’ where one, or more, or in combination, of the criteria in s 366(2) establishes circumstances which are ‘unusual, out of the ordinary, special or uncommon.’

[33] More recently, in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 (‘Stogiannidis’),a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 which had concluded that in order for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. Until recently, this approach had been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [38]-[40]:

‘[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), 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 disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

See also: Cannon v Quad Services [2019] FWCFB 2097.

[34] I turn now to each of the matters the Commission is required to take into account in order to be satisfied whether the applicant has established ‘exceptional circumstances’ for the late lodgement of this application.

The reason for the delay (s 394(3)(a))

[35] There are two reasons advanced by the applicant to explain the reasons for the delay in filing his unfair dismissal application: the primary reason is his severe depression and anxiety; a secondary reason goes to TNT’s delay in responding to his requests to amend his letter of termination.

[36] In Scott v Steritech Pty Ltd t/a Steritech[2019] FWC 2970 (‘Steritech’), in finding the establishment of ‘exceptional circumstances’, I said at [93]:

‘[93] As to Mr Scott’s medical/psychological condition, it is not ‘out of the ordinary’ or ‘unusual’ for a dismissal employee to experience some degree of anxiety, stress, withdrawal from social and normal human activities and helplessness. Sometimes this manifests itself in depression of such severity that medication, or regrettably even hospitalisation, may be necessary.’

[37] However, in my view, the facts and circumstances in Steritech are not ‘on all fours’ with the circumstances here; principally because in this case the applicant had been experiencing a very worrying time with considerable stress and anxiety over a long period, from when he was arrested in 2016 to his conviction on 18 November 2018. Given his family and work circumstances, such stress and anxiety was perfectly understandable. While he had been consulting a psychologist (Dr Naaz) during this period, there is no evidence that his condition was so severe as to require hospitalisation. The point is, however, this pre-existing stress and anxiety had nothing to do with TNT and/or his dismissal, which again understandably may have been exacerbated by the events initiated by TNT, soon after his conviction. On one view, although being aware of his arrest and the charges, TNT is to be commended for not taking any action to jeopardise his employment, until the charges were finally determined; albeit it took two years.

[38] It is unnecessary for me to rehearse all of the uncontested chronology of events which were set out by the applicant at [5]-[15] above, in order to demonstrate that rather than support his submissions of ‘exceptional circumstances’, it in fact, does the opposite.

[39] This is so because it is impossible to reconcile the applicant’s claim, on the one hand, that he was so mentally incapacitated that he could not file a simple Form F2 (including over the phone), when on the other hand, he was making numerous contacts, almost on a daily basis with lawyers, the Company, and the Commission in a coherent and erudite fashion, about his dismissal and seeking advice. This also involved visiting law offices and consulting with his family. The only time he was hospitalised was for two days (1 and 2 December 2018), which was 11 days before his dismissal and in circumstances, in his own words, where he was admitted to hospital because he had unintentionally overdosed on prescribed medication. In other words, his unfortunate hospitalisation provides no explanation for the delay in filing his application in the 21 days following 13 December 2018.

[40] I note, in particular, that the applicant went to his sister’s house on 4 January 2019 to ask for her to help in drafting a letter to TNT, as she was involved in HR. It is curious that this was just 1 day after the 21 day time limit, yet a coherent and detailed letter in which claims are made about what he was told by the FWO, he gives examples of other employees’ alleged misconduct and he makes financial offers to settle the matter, there is not a single mention that he had, or intended to file an unfair dismissal claim. I do not know, and will not speculate what he told his sister, an experienced person in HR. However, if there was no issue raised by her, about whether he had filed a claim in time, it is indeed most regrettable.

[41] The applicant provided one medical certificate from his GP, Dr Sujatha Srinivasan, dated 21 February 2019 – two months after his dismissal. In my opinion, the Doctor’s comments are not only entirely inconsistent with the chronology of activity undertaken by the applicant, in a period where it is said he was ‘unable to take any decision from mid december (sic) till january (sic) mid 2019’, but I am also at a loss to understand how the Doctor could retrospectively diagnose the applicant’s incapacity on 21 February 2019 for a period from mid-December 2018 to mid-January 2019, when there is no evidence the applicant attended this Doctor, or any other doctor, during the said period.

[42] There is another referring letter from Dr Lubna Naaz, Consultant Psychiatrist, dated 28 November 2018, who had been seeing the applicant since 2016, during his two years of uncertainty about his criminal proceedings. This was the trigger for the applicant’s brief hospitalisation over the weekend of 1-2 December 2018. For the reasons expressed above at [37], this medical evidence is not relevant to the 21 day period after the applicant’s dismissal.

[43] The applicant also provided a more recent letter from a psychologist, Khoa Tran, dated 27 May 2019, attaching what appears to be general information found on the internet about the differences between ‘situational depression’ and ‘clinical depression’. The psychologist had first seen the applicant on 1 April 2019 in relation to treatment for ‘situational depression’. Given the psychologist’s only involvement commenced six months after the applicant’s dismissal, it must be of very limited relevance. It is certainly not contemporaneous or consistent with the applicant’s activity in the 21 days after his dismissal.

[44] Lastly, I note that in the applicant’s oral evidence, he appeared to accept he had been aware of time limits for filing applications, but believed it excluded public holidays. During the hearing, the applicant said:

‘I honestly thought the 21 days included public holidays, and that's because my mental state wasn't very good at the time, and I didn't really think that Christmas and New Year's would count. So, it's partly my fault there but my mental state wasn't in good condition. Yes, so basically from the day I got stood down I was in a pretty bad way, on the same day I got told about heart problems that I had. I got the same phone call that day, then had to get straight to a heart specialist. The verdict of my ongoing matter, plus being stood down and yes, it all just built up on me. And I did try to negotiate with him and ask him if he'd do a no-win, no-fee, but that's not the way he runs his business and he declined.’

If the applicant was aware of time limits, it was incumbent on him to inquire of someone, or the Commission as to what it was. This candid admission tells against an extension of time being granted.

[45] The applicant said that another reason for the delay was TNT’s delayed response to his request to amend the termination letter; see: [19] above. It is difficult to see how amending the termination letter (which did not happen in any event) has anything to do with the fact he had been dismissed and was disputing his dismissal. Moreover, given his frustration with the process of getting the reason for his dismissal legally correct, in terms of his actual conviction, it seems incongruous that he would not have been spurred on to lodge an unfair dismissal, as a means of getting the letter corrected, possibly at conciliation.

[46] Accordingly, I am not satisfied that the reasons for the delay have been made out. This tells against an extension of time being granted.

Whether the person first became aware of the dismissal after it had taken effect (s 394(b))

[47] I am satisfied that the applicant was aware of the likelihood of his dismissal in the ‘show cause’ letter of 29 November 2018 and was aware he was dismissed on the day it took effect. This is a neutral consideration.

Any action taken by the person to dispute the dismissal (s 394(c))

[48] There is no doubt that the applicant went to considerable lengths to seek and obtain evidence about his dismissal. Regrettably, he was side tracked by the infelicitous, but hardly significant, wording of his dismissal letter about the nature of his conviction. While this may have been important to him, I am not sure that the distinction he sought to correct would make much difference on his resume, or to any prospective employer.

[49] While the numerous contacts to various persons and organisations he made in the 21 days after his dismissal tells against a finding of an acceptable reason for the delay; see: [38] above; ironically, this works the other way around under s 394(c)). I accept he was taking active steps to dispute his dismissal. This factor tells in favour of an extension of time being granted.

Prejudice to the employer (s 394(d))

[50] The respondent conceded it would experience no prejudice by the delay in dealing with, and responding to the applicant’s unfair dismissal application. Of course, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time; see: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IRC 298. This is a neutral factor in this case.

The merits of the application (s 394(e))

[51] I take the opportunity to set out below the observations of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). 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 pursuant to s.170CE(8). 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. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[52] In Kornicki v Telstra - Network Technology Group Print P3168, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said:

‘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 merits of the substantive application for relief in the context of an extension or 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.’ (my emphasis)

[53] It is appropriate to observe that the applicant’s dismissal raised an historically uncommon, yet more frequently encountered, reason for dismissal, being his out of hours conduct, which he insists did not and could not mean he was unable to perform the inherent requirements of his job. Given the conduct involved a drug related criminal conviction, I am unaware of any other case involving a similar set of factual circumstances.

[54] Unfortunately, there has been no substantive argument on this issue. For the above reasons, I am satisfied the applicant’s case is, at least, arguable, and is ‘not without merit’. This factor tells in favour of a finding of ‘exceptional circumstances’.

Fairness between other persons in a like position (s 366(2)(e))

[55] In Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

‘Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the important of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

For the reasons I have earlier expressed, the facts and circumstances of this case do not reach the threshold of other decisions of the Commission concerning the mental and psychological state of an applicant as explaining or adding to the reasons for the delay in filing an application; see: also my decision Steritech. This factor tells against an extension of time being granted.

CONCLUSION

[56] Taking into account all of the matters in s 394(3) of the Act and after balancing all of the largely uncontested facts and circumstances in this case, and according them appropriate weight, I am not satisfied that the applicant has established ‘exceptional circumstances’ which are ‘unusual’, ‘out of the ordinary’, ‘special’ or ‘uncommon’, such as to warrant the Commission extending the time for him to lodge his unfair dismissal application. Accordingly, the application must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Ms C Tirado, Legal Counsel - TNT, and Ms R Bullock, HR Specialist - TNT, for the respondent.

Hearing details:

2019.

Sydney:

30 May.

Printed by authority of the Commonwealth Government Printer

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