Craig Thomson v Linx Cargo Care Pty Ltd
[2022] FWC 190
•28 JANUARY 2022
| [2022] FWC 190 [Note: An appeal pursuant to s.604 (C2022/1191) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Craig Thomson
v
Linx Cargo Care Pty Ltd
(U2021/9152)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 28 JANUARY 2022 |
Application for an unfair dismissal remedy
Introduction
This Decision concerns an application by Mr Craig Thomson (the Applicant) under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by Linx Cargo Care Pty Ltd (the Respondent). Section 394(2) of the Act requires that such an application is made within 21 days of a dismissal taking effect, or such further period as the Fair Work Commission (Commission) may allow under s. 394(3). The application was filed on 14 October 2021.
In his Form F2 Application for an unfair dismissal remedy, the Applicant stated that he was notified of his dismissal on 22 September 2021 and that the dismissal took effect that day, but that the Applicant was on sick leave at the time. There is no dispute as to the date of termination and its effect. Based on the information provided by the Applicant in the Form F2 Application, the application was required to be made by midnight on 13 October 2021 and was lodged one day outside the required time
On 27 October 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that he provide reasons as to why an extension should be granted having regard to the matters in s.394(2) of the FW Act. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted.
The Applicant’s F2 application initially stated that the legal name of the Respondent was “LINX”. The Form F3 Response to the application stated that the Applicant’s employer was Linx Cargo Care Pty Ltd. When this matter was identified, with the agreement of the parties, permission was granted for the application to be amended so that it was made against the entity which employed the Applicant.
On 19 November 2021, I conducted a hearing, by telephone, in relation to whether a further period should be granted to the Applicant to lodge his unfair dismissal application. The Applicant was represented by Ms Wendy Carr, National Legal Officer of the Construction Forestry Maritime Mining and Energy Union – Maritime Union of Australia Division (the CFMMEU). The Applicant and his partner, Ms Karen O’Sullivan gave evidence at the hearing. Permission was granted for the Respondent to be represented by Mr Julian Arndt, Associate Director of Australian Business Lawyers and Advisors on the basis that I was satisfied that this would allow the matter to be dealt with more efficiently having regard to its complexity.
Extension of time application
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Applicant’s evidence
Prior to his dismissal, the Applicant was employed as a Stevedore by the Respondent, and its predecessors, for around 23 years. In about February 2020 the Applicant lodged an anti-bullying application against the Respondent and one of its employees. The Applicant states this caused him stress, anxiety and depression, and due to this, he was prescribed an antidepressant called Escitalopram (Lexapro) in around March or April 2020. In September 2020 the Applicant’s dosage was doubled to 40mg by his clinical psychologist. The Applicant states that the medication has the effect of relaxing him and slowing him down and causing some problems with his thinking. It also causes the Applicant to sleep up to 16 hours a day, and the Applicant continues to take this medication and struggles with fatigue.
On 17 September 2021, the Applicant slipped while walking to a bus stop and fell onto his chest. In the following days when the pain from the injury did not subside, the Applicant sought medical attention. The results of an MRI were received by the Applicant on 21 September which showed the Applicant had two broken ribs. The Applicant states he was prescribed painkillers including Codeine Forte (30mg), Lyrica (25mg), Proxen SR (750mg) and Oxycodone IR (5mg).
The Applicant’s evidence is that these medications caused him to be very docile, emotionless, noncaring, and caused him to sleep a lot and to suffer from memory problems. The Applicant states that these issues affected his day-to-day functioning and all he could do was sit on the couch and watch television. Ms O’Sullivan’s evidence is that the combination of the painkillers and antidepressants the Applicant was taking left the Applicant in a state of sedation and it was often difficult to talk to the Applicant or illicit responses from him.
The Applicant obtained a medical certificate from his doctor covering the period of 20 September to 5 October, as well as subsequent certificates which covered the Applicant until 19 October 2021. The Applicant gave these certificates to Ms O’Sullivan who sent them to the Respondent. On 22 September 2021, the Applicant awoke to a missed call from Ms Michael Ryan, Eastern Ports Manager of the Respondent. The Applicant then checked his emails and found he had received an email from Mr Ryan and Ms Sinead Bryson attaching a termination letter. The Applicant told Ms O’Sullivan when she arrived home from work on 22 September that his employment had been terminated.
The Applicant’s evidence is that he received a telephone call from Mr Paul Petersen, Assistant Queensland Branch Secretary of the CFMMEU – MUA, asking him about making an unfair dismissal application. The Applicant is not sure of when this call took place. The Applicant could not recall exactly what he told Mr Petersen as his memory at the time was not very clear, but the Applicant recalls telling Mr Petersen he was not up to pursuing an unfair dismissal application because he was in shock, and his mental state was not allowing him to comprehend the situation. The Applicant states that at that time, he was focussed on healing his broken ribs and his mental health. The Applicant also believes the medication he was taking dampened his thinking and reaction to his dismissal.
The Applicant telephoned Mr Petersen at some point after Mr Petersen had called him, but the Applicant cannot recall when he made this call. The Applicant was calling Mr Petersen to discuss the termination of his employment however Mr Petersen did not answer the call. The Applicant states that he either received a voice message or text message in response to the missed call and was informed that Mr Petersen was on leave.
On or around 6 October 2021, the Applicant had a discussion with Ms O’Sullivan in relation to his dismissal and requested that Ms O’Sullivan challenge the dismissal on his behalf by making an application to the Commission. Ms O’Sullivan states that they did not discuss his dismissal until this time because she was busy with a full-time job as well as having her daughter and granddaughter residing with them.
On 7 October 2021, Ms O’Sullivan emailed the Commission’s Anti-bullying team (as it was then known) because this was the only email contact Ms O’Sullivan had for the Commission and she believed that Mr Thomson’s 2020 anti-bullying application was still open. The email was copied to Mr Petersen and an email address for the Applicant. Ms O’Sullivan did not receive a response to her email. The Commission was not open on 9 and 10 October as it was the weekend. The email dated 7 October stated as follows:
“Good Afternoon,
I am emailing on behalf of my partner Craig Thomson as the union representative is away on leave and we must contact you in the specified timelines after he was unfairly dismissed.
I have cc. him in on this email for when he returns as he will be the main point of contact for the claim. (Claim number AB202/309)
The Antibullying claim was lodged and conciliation occurred in June 2020 last year by Stephen Cumberlidge & Lee Norris (MUA reps at the time) and was left then open.
We wish to proceed as Craig has now been unfairly dismissed due to this and we wish to continue this process.
Please advise how we can move forward.”
On 12 October 2021, having not received a response from the Commission, Ms O’Sullivan sent an email to Mr Petersen, as well as “[email protected]” and “[email protected].” While Ms O’Sullivan was not cross-examined on this point, the email address referring to “antibullying” is incorrect. It appears that this explains the fact that Ms O’Sullivan did not receive a response to her email of 7 October 2021, which was directed only to that incorrect address. Ms O’Sullivan’s second email, also directed to an “enquiries” email address includes reference to the matter number for the Applicant’s antibullying application, and is in the following terms:
“Good Afternoon,
I have not had a response from Fair work and would like to know what is next when we have a claim already open for bullying in the workplace.
As per my previous email what do we do next?
The Antibullying claim was lodged and conciliation occurred in June 2020 last year by Stephen Cumberlidge & Lee Norris (MUA reps at the time) and was left then open.
We wish to proceed as Craig has now been unfairly dismissed due to this and we wish to continue this process.
Look forward to a response or direction.”
It is convenient to note that the Applicant’s antibullying application which was previously allocated to me, was discontinued by the Applicant’s representative in that matter on 9 June 2020.
On 12 October 2021, Ms O’Sullivan received an automated response from “[email protected]” which gave her a telephone number to call. Ms O’Sullivan called the telephone number that afternoon and was advised by a Client Services Representative to access the Commission’s website and download a Form F2 unfair dismissal application. Ms O’Sullivan states she advised the representative that she was disappointed she did not receive a response to her initial email to the anti-bullying email address.
Ms O’Sullivan’s email of 12 October 2021 to the Commission’s “enquiries” email address was also forwarded to my Chambers, because it referenced Mr Thomson’s earlier application for an order to stop bullying. At 5.16 pm on 12 October 2021 Ms O’Sullivan received an email from my Associate in response. That email, including an email chain showing the emails sent by Ms O’Sullivan on 7 and 12 October, was tendered by Ms O’Sullivan in the extension of time hearing. The email from my Associate is in the following terms:
“Dear Ms O’Sullivan,
I acknowledge receipt of the below correspondence.
Mr Thomson’s anti-bullying application was discontinued by his representative, Mr Norris of the CFMMEU on 9 June 2020. Please see the attached notice of discontinuance filed.
If Mr Thomson considers he has been unfairly dismissed, he may consider filing an unfair dismissal application within 21 days of his dismissal taking effect. Please note that information about the application, including how an application can be lodged can be accessed at the below link:
[Link to the Commission’s website regarding unfair dismissal applications]
Please also note that applications are not filed directly to Chambers and if Mr Thomson wishes to file an application he should do so by following the guidance provided on the Commission’s website in relation to how an application can be filed.”
Ms O’Sullivan states that she panicked upon reading that the unfair dismissal application must be filed within 21 days from the date of the dismissal taking effect. This caused Ms O’Sullivan to stay back at work that night and print out and complete the form, including the date, which she marked as 12 October 2021. Ms O’Sullivan’s evidence is that although she was aware of the 21 day timeframe at that point, she was unsure if it was 21 working days or calendar days, and that she was panicking and decided to just get it done quickly and lodge it as soon as possible. Ms O’Sullivan also said she did not have a scanner or printer at home, and that she only had her work laptop on the night of 12 October 2021 when she was at work. Ms O’Sullivan brought her work laptop home on 12 October as she intended to work from home on 13 October 2021, as she did every Wednesday.
Ms O’Sullivan also states that she lives an hour’s drive away from her workplace in the city. Ms O’Sullivan further states that could not get the Applicant to sign the application on the night of 12 October 2021 and could not have sent it to the Commission as she did not have a scanner at home. Further, Ms O’Sullivan said she is not “the best with computers” and often relies on her children to assist her with technology. Although the application was dated 12 October, the Applicant signed the application on 13 October 2021.
The only opportunity Ms O’Sullivan had to send the application to the Commission was on the morning of 14 October 2021 when she went back to her office. Ms O’Sullivan was not aware of any friends or family nearby who had printers or scanners and said that she was also not aware at the time, that an unfair dismissal application form could be completed online. Ms O’Sullivan said that nobody from the Commission told her this. Ms O’Sullivan also said that the Applicant remained on his medication throughout the 21 day period following his dismissal and was unable to lodge the application himself, and is now aware the application was lodged late which was an error on her behalf.
Applicant’s submissions
The Applicant submits the circumstances causing the delay in lodging the application were special and unusual. The Applicant’s delay in filing the application for an unfair dismissal remedy was due to the Applicant’s medical incapacity at the time of his termination, which continued well after the prescribed deadline of 21 days to lodge the application. It is unreasonable for the Respondent to expect a response form the Applicant within this timeframe whilst knowingly terminating him whilst in a vulnerable physical and mental state.
The Applicant’s medical and mental state at the time of his dismissal inhibited his ability to think clearly about what action he should take in relation to his dismissal. Further, on or around 6 October 2021 when the Applicant had decided to pursue an unfair dismissal, he tried to contact Mr Petersen but he was on leave and did not return until after the date on which the Applicant’s partner ultimately filed his application.
Ms O’Sullivan provides reasons for the delay in her evidence, one of which was that it was difficult to obtain clear instructions from the Applicant because of the combined effects of all the medication he was taking. Ms O’Sullivan attempted to make inquiries to the Commission as to the proper procedure to dispute the dismissal and this information was only provided to Ms O’Sullivan on the evening that the application was due to be lodged. Any ignorance of the 21 days’ time limit on part of the Applicant’s representative, Ms O’Sullivan, or any other error on part of Ms O’Sullivan, should be considered as the representative’s error without blame on the Applicant.
The Applicant gave the direction to Ms O’Sullivan to lodge the application and she sought to act promptly by contacting the Commission through the email contacts she had from previous experience on another matter. The delay of the lodgement was minimal. The application was prepared on 12 October (due date) and lodged on 14 October 2021. No prejudice in this minimal delay could be afforded to the Respondent.
The Applicant relies on the decision in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[3] and submits that exceptional circumstances were found in that case due to the applicant being on personal leave covered by a medical certificate when he was dismissed. Further, the delay in filing that unfair dismissal application was 26 days. The Applicant’s delay in similar personal circumstances was only 2 days.
The merits of the Applicant’s application are submitted to be significant. The Applicant was dismissed after a lengthy service with the Respondent and was not afforded procedural fairness. Further, he was dismissed only one day after being required to provide a response to a “show cause” letter from the Respondent, despite being injured and on sick leave at this time.
The Applicant also submits it would be unfair in the circumstances to dismiss the application for this minor delay and error on behalf of the Applicant’s representative. The Applicant’s extensive employment history with the Respondent without a blemish on his record warrants his application be heard. He is 58 years old and intends to work for at least another nine years. At his age, and in the wider context of the economic effects of the COVID-19 pandemic on the maritime industry, the Applicant is unlikely to find alternate work with another company in the maritime industry.
RESPONDENT SUBMISSIONS
The Respondent submits that none of the reasons for the delay advanced by the Applicant, either individually or collectively, provide a basis for any finding of exceptional circumstances.
In summary, the Respondent submits that the Applicant:
had the assistance and direction of his partner, who was in turn assisted by both the Fair Work Commission staff and a Fair Work Commission Associate to file his Application in time;
had contact with representatives at both a law firm and his union in relation to his employment situation whom he could have called on to assist (he was in fact contacted by his union about the filing of an application and indicated that he did not want to proceed with it);
was aware (at a minimum his partner was aware) of the existence of a time limit on the making of an unfair dismissal claim;
had access to a computer and phone and did in fact use emails and attachments to pursue employment entitlements in the relevant time period;
had not established in evidence that he was physically incapable of filing his Application, with his medical evidence only establishing that he was unfit to attend for work;
appears to have not taken any relevant steps to progress his claim other than, (and the evidence provided is not consistent on this point) asking his partner to challenge his termination, and signing the Application the day after it was prepared;
does not have a meritorious claim; and
has provided absolutely no legitimate explanation for the failure to file the Application on 12 or 13 October 2021, at which point his Application had already been drafted following assistance from the Commission and Chambers.
In relation to the Applicant’s incapacity to file an application himself, the Respondent submits the only medical evidence before the Commission is a series of medical certificates from the Applicant’s medical practitioner, and at their highest, these certificates identify that the Applicant was suffering from a medical condition and was unfit for work for the period of 20 September 2021 to 21 September 2021, then post-termination notification, unfit for work up to and including 19 October 2021. The Applicant had, for other reasons, in fact last been fit to perform work with the Respondent on 29 April 2020.
Further, the Respondent submits the material before the Commission provides no evidence for the following propositions:
that the Applicant lacked the physical capacity to prepare and file his Application (or cause it to be prepared and filed) within the statutory time limit;
the effect of the medications detailed by the Applicant or the effect of the Applicant’s injury was that the Applicant was physically unable to prepare his application and file it within the statutory time limit; and
that, during the relevant period, the Applicant suffered significant sedation and loss of function or that the Applicant slept most of the day, suffered general drowsiness and forgetfulness.
The evidence before the Commission likewise provides no medical explanation as to why the Applicant was able to take the steps he did to file his Application by 14 October 2021 but was not able to take earlier steps. The Respondent submits the medical evidence before the Commission provides no insight into the extent to which Applicant was incapacitated during the period of delay, let alone the 21-day period immediately following the termination of his employment for making an unfair dismissal application.
The Respondent also submits that the Applicant’s reliance on the authority of Ovenden is misplaced, on the basis that this case is not an authority for the proposition that “exceptional circumstances” exist where an employee is dismissed while on personal/carer’s leave. Indeed, that case included medical evidence of a specificity and detail which is simply absent from these proceedings.
The Respondent also contends there are additional factors which suggest that the Applicant was not in fact incapacitated due to a health issue and was in fact able to file within the requisite time period. The Respondent points to the following matters, occurring after the Applicant’s dismissal, said to demonstrate this:
· the Applicant’s partner sent four emails (3:39 PM, 3:44, 3:47 PM, 3:52 PM and 3:52 PM) on 22 September 2021 to the Respondent on his behalf;
· the Applicant sent an email to the Respondent on 23 September 2021 at 6:30 PM;
· the Applicant sent an email replying to the Respondent on 28 September 2021 at 9:17 PM;
· the Applicant sent two emails to the Respondent on 29 September 2021 at 2:26 PM and 3:12 PM; and
· The Applicant’s partner sent an email to the Respondent on 5 October 2021 at 2:59 PM
The Respondent submits the emails sent by the Applicant during this period contradict the Applicant’s evidence that he was incapable of progressing his application, or of giving instructions such that his Application could be progressed. These materials also cast significant doubt on the claimed inability of the Applicant and his partner to send emails with attachments from their home rather than from a workplace.
Further, the subject matter of the Applicant’s emails on 23, 28 and 29 September 2021, namely pursuing payment of his sick leave entitlement following the termination of his employment is a relatively complex claim in its own right. In the submission of the Respondent, the making of these enquires arguably required greater focus, consideration and recall than the preparation of the Application. Again, in the submission of the Respondent, if the Applicant had the capacity to send such correspondence, he also had the capacity to make an unfair dismissal application within the time required. The fact that he did not do so within the required time and instead chose to pursue payment for personal leave by corresponding directly with the Respondent was the Applicant’s choice. The exercise of this choice is not an exceptional circumstance which could provide a reasonable explanation for delay in making an unfair dismissal application.
The Respondent submits it is also significant that, despite the medical evidence before the Commission, the application was filed on 14 October 2021 in any event, being within the period of the Applicant’s alleged incapacity from 20 September 2021 until 19 October 2021. This establishes that the Applicant’s apparent condition as outlined by the medical evidence did not prevent the filing of his Application. The Applicant also sent another email to the Respondent at 8:37 PM on 14 October 2021. There is no medical explanation as to why the Applicant had the capacity to progress his claim on 14 October 2021 and could not have done earlier.
The Respondent also submits that the Applicant appears to have not taken any relevant steps to progress his claim other than, on his evidence, asking his partner to challenge his termination, and signing the Application the day after it was prepared. The suggestion that the Applicant was both unable to progress his claim because of his lack of capacity on medical grounds, however, was able to take steps such as to direct his partner to progress his claim on his behalf is inherently contradictory.
The Respondent also submits that there are various decisions of the Commission that have made it clear that shock, distress and/or anxiety is not an unusual outcome of the termination of one’s employment and, in the context of a late application, does not warrant a conclusion of exceptional circumstances.
In relation to the reason for the delay advanced regarding Ms O’Sullivan’s correspondence to the Commission on 7 October 2021, the Respondent submits that this email:
· clearly identifies an awareness of the existence of a statutory time limit;
· arguably indicates a desire to proceed with the anti-bullying ‘Claim number AB202/309’;
· seeks advice from the Commission about how ‘we can move forward’; and
· copies in the Applicant’s union representative, Mr Peterson.
On 12 October 2021, five days later, the Applicant’s partner followed up this correspondence, seeking a response. A response was provided on 12 October at 6:16pm (5:16pm AEST) indicating that the anti-bullying file had been closed and providing a link to unfair dismissal resources and the relevant website. The Applicant’s partner provides evidence that prior to this response on 12 October 2021 she also spoke to a “very helpful” representative of the Commission who informed her to go online and download a Form F2 application.
The Respondent submits the existence of the enquiry to the Commission’s anti-bullying team should not support a finding of “exceptional circumstances” because it clearly indicates Ms O’Sullivan’s awareness of a time limit during which the application has to be filed, notwithstanding that ignorance of the required timeframe would not be an exceptional circumstance in any event. Further, the Respondent points out that Ms O’Sullivan’s emails to the Commission do not attach a claim or an Application and are not an example of an attempt to file a claim – these emails are simply enquiries, notwithstanding Ms O’Sullivan’s awareness of the existence of a time limit. It would also be possible for the Commission to find that these emails were in fact seeking to “continue with the process” of the Anti- Bullying application.
Further, the Respondent contends there is no satisfactory explanation as to why Ms O’Sullivan waited five days to make a further enquiry after her initial email, or to explain the failure to conduct any further independent research. No satisfactory explanation is provided as to why, after receiving detailed instructions and information from a Registry Staff member and an Associate of the Commission on 12 October 2021, the Application was not filed on 12 October 2021. The Respondent notes that the Applicant’s claim that advice from the Fair Work Commission was only received on the night it was required to be filed is simply incorrect.
No satisfactory explanation is provided as to why, after in fact completing the Application on 12 October 2021 following receipt of advice by the Fair Work Commission and from Chambers, the application was not filed on 13 October 2021.
The Respondent also submits it is not the responsibility of Chambers to provide legal instruction or advice to Applicants, to the extent that the Applicant’s materials suggest any criticism of or ‘disappointment’ with the Commission for not more promptly replying to Ms O’Sullivan’s enquiries; this submission should be rejected.
Further, to the extent that the Applicant seeks to apportion any blame to the Commission for the failure to file the Application in time, this submission should likewise be rejected. Even if it were the role of Chambers to immediately respond to emails concerning discontinued matters with advice about how to pursue further claims, this still would not explain why the Application was not filed on 12 October 2021 or on 13 October 2021.
The Respondent also submits the absence of the Applicant’s union representative on leave is not an example of exceptional circumstances. By way of observation the Respondent notes that the Applicant had an established and working relationship with multiple representatives at his union (including in relation to the previous anti-bullying claim and his dismissal, as well as after his dismissal), in addition to being represented by Turner Freeman Lawyers in the lead up to his dismissal. The Applicant was not a person whose position or status made it difficult to pursue his legal interests.
In relation to the Applicant’s reference to representative error as a reason for the delay, the Respondent notes that the actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable. There is no evidence before the Commission that the Applicant took any steps to pursue his claim, beyond asking his partner to challenge his termination and signing the Application the day after it was prepared.
In relation to the Applicant’s reliance on having difficulties with using technology or accessing a computer, scanner or printer, the Respondent points out that there a range of methods by which an application can be lodged including via email, fax, post, in person or by telephone. The Respondent also submits that it is not clear that the apparent difficulties faced by the Applicant and Ms O’Sullivan explain the failure to lodge the application on 12 October 2021 or 13 October 2021 at which point the application form had already been printed and completed. Further, the claim that the application could not be filed because the Applicant did not have a scanner in his home is undermined by the fact that the Applicant and Ms O’Sullivan had an iPhone and had previously emailed from personal email addresses copies of medical certificates to the Respondent during the Applicant’s apparent period of incapacity.
Additionally, the Respondent submits the claim that the application could not be filed because the Applicant did not have a printer at home makes little sense. On the Applicant’s own evidence, the application as filed was printed on 12 October 2021. Equally, the Applicant’s evidence suggests his partner had access to a work computer, which could be taken home.
The basis upon which it is suggested that the application could not be filed on 13 October 2021 is that Ms O’Sullivan works from home on Wednesdays. No explanation is provided why the Applicant or Ms O’Sullivan could not have taken steps to file the application on 13 October 2021 independently from Ms O’Sullivan’s physical attendance at work. There is also no suggestion that the Applicant or his partner did not have access to the internet and a computer where an application could have been made.
As is established by the Applicant’s own evidence, the Applicant and his partner were placed on notice on 12 October 2021 that the Application needed to be filed within 21 days of his dismissal. Based on Ms Sullivan’s email to the Commission on 7 October 2021, it appears Ms O’Sullivan was already aware of this deadline. Despite this, and without any explanation, the Application was not filed on 12 or 13 October 2021. There is no legitimate reason explaining this delay.
While the above analysis focusses on 12 October 2021 and 13 October 2021, the Respondent notes that neither has there been any adequate explanation provided as to why the Application could not have been filed prior to 12 October 2021. There is simply no evidence of any other attempt to file an application.
In relation to whether the Applicant became aware of his dismissal after it had taken effect, the Respondent notes there is no dispute that the Applicant’s employment ended on 22 September 2021 and received the letter informing him of this on that date The Applicant was issued a letter on that date. The Respondent also submits the Applicant was also notified that termination was a possible consequence prior to his termination, as were his representatives.
In relation to any action taken by the Applicant to dispute the dismissal, the Respondent submits the reliance of the Applicant on the Anti-Bullying Enquiry as establishing “an action taken by the Applicant to dispute the dismissal” should be afforded relatively little weight. This is because the enquiry was little more than an enquiry as to next steps; no application or claim was made or filed erroneously; and the Anti-Bullying Enquiry emails are in relation to a different matter and could well be understood as a misguided reagitating of the Applicant’s previous bullying claim. Further, even if the relevant emails are understood as actions taken by the Applicant to dispute the dismissal, the actions are most meagre, and no explanation is provided as to why there was such a delay in following up the initial enquiry of 7 October 2021. The Applicant in fact made greater attempts to secure payment of additional sick leave directly from the Respondent than any attempts made to dispute his dismissal. This factor weighs against a conclusion that there are exceptional circumstances or is at best neutral.
The Respondent acknowledges that it will not suffer any material prejudice if the Application is allowed to proceed. The Respondent submits that while this factor might weigh slightly in favour of a conclusion that there are exceptional circumstances, the weight to be attributed to this factor should be modest. The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
In relation to the merits of the application the Respondent submits that a detailed analysis of the substantive merits is not required in the context of an extension of time, however, the Commission can comfortably assess the merits of the application as being very modest. The Respondent dismissed the Applicant on the basis of the irrevocable breakdown of the trust and confidence underpinning the employment relationship and the Respondent’s obligations to provide a safe workplace. This breakdown is said by the Respondent to be due to:
· the Applicant's conduct in misrepresenting facts during an appointment with an Independent Medical Assessor in order to obtain a more favourable outcome/s, which was arranged and paid for by the Respondent;
· the Applicant’s misrepresentations during an investigation;
· the Applicant's continued unresolved anger and aggression towards another employee;
· the Applicant's continued unresolved anger and aggression towards the Respondent, as a result of his ongoing refusal to accept reasonable management action in NOT terminating another employee's employment.
The Applicant’s conduct and performance was the subject of an internal investigation, whereby the Applicant was afforded procedural fairness including but not limited to being notified of the allegations in writing and then being given every reasonable opportunity to respond to the allegations. The findings of the investigation were based on reasonable grounds. The Applicant was afforded procedural fairness throughout the termination, including being given an opportunity to show cause why his employment should not be terminated.
Contrary to the submissions and statements of the Applicant, the Respondent submits there has never been any finding that the Applicant was bullied in his employment and the Respondent denies these claims. The Respondent also disputes the Applicant’s claim that he was not afforded procedural fairness. The Respondent also notes that the Respondent and the Applicant were subject to a binding decision by the Queensland Medical Tribunal which outlined that while the Applicant was fit to return to work, he could not be returned to his workplace at the LINX Brisbane site. As noted above, the Respondent last performed work at the Applicant’s site on 6 March 2020.
Accordingly, the Respondent submits that should the Application be allowed to proceed, the assessment of any compensation available to the Applicant in his claim would need tempered by the fact that, at the time of his dismissal, the Respondent was unable to continue in his role in any event. This factor weighs against a conclusion that there are exceptional circumstances.
In relation to fairness between the Applicant and other persons in a similar position, the Respondent submits an applicant seeking an extension of time is considered in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time, and that this is a neutral consideration.
In conclusion, the Respondent submits that on any view, the materials before the Commission do not clear the high hurdle required to establish “exceptional circumstances” which would warrant an extension of the statutory time limit and the application should therefore be dismissed.
Consideration
Reason for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[5]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[6]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. It is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay[7].
The reasons for the delay are that the Applicant was incapacitated at the time of his dismissal (and throughout the 21 day timeframe) such that he was unable to lodge an application or give adequate instructions to his representative, the delay in response from the Commission to Ms O’Sullivan’s email enquiry on 7 October 2021, and that Ms O’Sullivan did not have access to technology at home to allow her to have filed the application on the Applicant’s behalf. The Applicant also appears to rely on representative error on the part of Ms O’Sullivan. Another reason is that the Applicant’s Union representative, Mr Petersen was on leave at the time of dismissal and did not return until after the 21 day timeframe had expired.
The Applicant’s evidence is that the effect of medication he was taking as a result of the injury he sustained on 17 September 2021, combined with the effect of antidepressant medication the Applicant was also taken, was such that he was completely incapacitated from filing an unfair dismissal application. It is also the Applicant’s evidence, as well as Ms O’Sullivan’s, that he was also unable to give instruction to Ms O’Sullivan to file the application on his behalf.
I accept that at the time of his dismissal, the Applicant was taking antidepressant medication and that this caused the Applicant some fatigue and had some effect on his thinking. I also accept that the Applicant sustained an injury prior to his dismissal, and that throughout the 21 day period the Applicant was also taking a number of strong painkillers, which the Applicant also asserts affected his day to day functioning and caused him to be docile, emotionless, and non-caring.
The medical certificates relied on also establish that the Applicant was unfit for work between 20 September and 21 September, and continued to be unfit for work following his termination until at least 19 October 2021. However, there is no evidence before the Commission that the Applicant was completely incapacitated for the entire period of the delay, either from his clinical psychologist who prescribes the Applicant antidepressants or another medical practitioner. Nor is there evidence that the Applicant’s medical condition or the medication he was taking incapacitated him to the point he was unable to file his application within the required time or to give instructions for it to be filed. In fact, Ms O’Sullivan states that the Applicant did request her to make the application on 6 October 2021, and on 13 October, signed the application for Ms O’Sullivan to file. Further, the Applicant lodged his application within the period covered by the medical certificates he tendered.
I am not satisfied that the Applicant’s circumstances are similar to those in Ovenden. In that case, the Applicant provided medical evidence establishing that he was suffering from depression and anxiety exacerbated by work stress as well as exhibiting signs of post-traumatic stress disorder and suffered from an intellectual impairment. While I accept that the Applicant in the present case has given evidence about the effect of taking his prescribed anti-depressants as well as painkiller medication for his broken ribs, that evidence does not establish that the Applicant’s medical condition was such that he was unable to file his application within time or that he was incapacitated to the extent that he was prevented from giving instruction to either Mr Petersen or Ms O’Sullivan during the period of the delay. It is also the case that other than the medical certificate indicating the Applicant was unfit for work, the only evidence of the Applicant’s incapacity is his own assessment of his medical condition and Ms O’Sullivan’s impression of the extent of the Applicant’s impairment.
I accept the Respondent’s submission that during the period of the delay where the Applicant asserts he was incapacitated, the Applicant was able to send emails to the Respondent making enquiries about the payment of sick leave including the email of 29 September 2021, in which the Applicant contests the amount of accrued sick leave owing to him and communicates his view to the Respondent that his employment could not be terminated while he was on sick leave. This evidence is at odds with the Applicant’s evidence that he was focussing on his mental health and was not in a mental state to run an unfair dismissal application.
I do not accept that the Applicant can rely on the established principles of representative error as a basis for contending that there are exceptional circumstances justifying the grant of a further period to make his application. Generally, representative error as an acceptable explanation for delay is founded upon an assumption that there is an obligation on the part of the person considered to be a representative which is more than voluntarism. A necessary pre-requisite for the Commission to accept representative error as a reasonable explanation for delay weighing in favour of a finding that there are exceptional circumstances, is that the person raising the argument has engaged (or engaged with) a representative in a sense that creates an obligation which gives rise to a legitimate and reasonable expectation that the representative will exercise appropriate care and diligence on behalf of that person. The negligence relied on must also be encompassed by the obligation. Further, the Applicant must be blameless in the error. The error in the present case was made by the Applicant’s partner, Ms O’Sullivan who was not acting as a representative in the sense that founds an exceptional circumstance on the basis of representative error.
The provisions in s. 394(3) present a high bar for late applications. If error or oversight on the part of a representative was an automatic basis for a finding that there are exceptional circumstances justifying the grant of a further period, the purpose of s. 394(3) would be subverted. That purpose would be further subverted if error on the part of a person who was not a representative, but simply assisting a person to make an application for an unfair dismissal application, was given the same, or similar weight as representative error.
The FW Act recognises various categories of representatives, including organisations, paid agents and lawyers. Section 596 provides that paid agents and lawyers may appear in matters before the Commission only with permission and prescribes the grounds upon which the Commission may decide to grant permission. It is common for persons to be assisted or supported by other persons – friends or family members with varying qualifications – in making or advancing applications to the Commission. However, such assistance or support will not necessarily, or of itself, result in the provider of assistance or support being considered a representative. The Form F2 Application has a section of an applicant to nominate a representative by including details of the person who is acting in that capacity. The coversheet for the Form F2 also states:
“Legal or other representation
Representation is where another person (such as a lawyer or paid agent, union official, family member or friend) speaks or acts on your behalf, or assists you in certain other ways in relation to your matter. There is no requirement for you to be represented at the Commission.
You will need permission from the Commission Member dealing with your matter if you wish to be represented by a lawyer or paid agent at a conference conducted by the Commission Member or a hearing, unless the lawyer or paid agent is an employee or officer of a union or a peak union body that is representing you. If you want to seek permission, you must lodge a Form F53 – Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing.
You do not need permission to have a lawyer or paid agent prepare and lodge this application with the Commission.”
There may be cases where a person who seeks to make an unfair dismissal application may be impacted by circumstances that are exceptional and for that reason entrusts another person to file an application on his or her behalf. In such a case, an error by the person entrusted to file the application may be considered, with other factors, to explain a delay and to weigh in favour of a finding of exceptional circumstances. However, the mere fact that a person relies on another person to file an application, and the latter person fails to do so in the required time, is not of itself, a reasonable explanation for delay constituting an exceptional circumstance.
For these reasons I am not satisfied that the Applicant has provided a reasonable explanation for the delay in filing his application either when the circumstances he describes are considered individually or in combination. This weighs against a further period being granted.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant states that he was notified of his dismissal on 22 September 2021 and that it took effect on that date.
The Applicant had the full period of 21 days from 22 September 2021 to lodge his unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.
Action taken to dispute the dismissal
While the Applicant’s partner took some action as a consequence of his dismissal, it was not action directed specifically at making an unfair dismissal application. Further, the action did not put the Respondent on notice that the Applicant was disputing his dismissal. To the contrary, the Applicant engaged with the Respondent in relation to his sick leave entitlements rather than his dismissal. On the other hand, where the delay in making the application is not significant, this is a matter which is at best neutral in the consideration of whether a further period should be granted.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission 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 the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[9]
After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success. In particular, it appears that the Respondent followed a detailed and apparently comprehensive “show cause” process before dismissing the Applicant.
Accordingly, I am of the view that the merits are a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant in support of the grant of a further period, I am not satisfied that there are exceptional circumstances such that I should exercise the discretion in s. 394(3) to grant a further period for the application to be made. Accordingly, I am required to dismiss the application in U2021/9152. An Order[10] to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
Ms W Carr of the CFMMEU for the Applicant.
Mr J Arndt of Australian Business Lawyers & Advisors for the Respondent.
Hearing details:
19 November.
2021.
By telephone.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] [2010] FWA 3863.
[4] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[7] Ibid.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Ibid.
[10] PR737880.
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