Daisy Younan v Inner West Council

[2019] FWC 4777

[2019] FWC 4777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 773 - Application to deal with an unlawful termination dispute

Daisy Younan
v
Inner West Council
(C2019/2843)

DEPUTY PRESIDENT SAMS SYDNEY, 11 JULY 2019

Application to have the Commission deal with an unlawful termination dispute – alleged unlawful reasons for termination of employment – temporary absence from work because of illness – religious discrimination – application filed out of time – extension of time to file application sought – whether ‘exceptional circumstances’ established – primary reason for delay due to applicant’s psychological condition alleged to have been caused by nine years of bullying, discrimination, harassment and humiliation – apparent ability to perform normal activities – high threshold not reached – exceptional circumstances not established – application dismissed.

[1] On 2 May 2019, Ms Daisy Younan (the ‘applicant’) filed an application, pursuant to s 773 of the Fair Work Act 2009, (the ‘Act’) in which she seeks to have the Fair Work Commission (the ‘Commission’) deal with an unlawful termination dispute. The applicant contends that the termination of her employment as a Development Assessment Officer by the Inner West Council (the ‘Council’ or the ‘respondent’) on 26 March 2019 was unlawful, in that she had been terminated for two reasons; firstly, her temporary absence from work because of illness and secondly, discrimination on the basis of her religion (Egyptian Coptic Orthodoxy). As set out in her Form F9, the applicant seeks the following as a remedy:

•  ‘An appropriate action be taken against Council for its negligence in [not] identifying, acknowledging and stopping the bullying, harassment and discrimination I have been subjected to for 10 years which completely crushed my confidence and caused my psychological injuries;

•  A letter of apology from Council, signed by a suitable person, is forwarded to me clearly admitting Council’s negligence in [not] identifying and stopping such conduct by its employees and also admitting my unlawful dismissal;

•  A second letter of reference acknowledging my good performance demonstrated in voluntarily initiating corrections of planning related oversights when noted;

•  An appropriate monetary compensation for psychological injuries as well as for damaging (sic) to my reputation by the spreading of rumours of having no planning qualifications resulting in loss of work opportunities elsewhere over the span of 10 years.’

[2] Section 774 of the Act sets out the time limit for filing an unlawful termination application. It reads as follows:

‘774 Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under subsection (2).

(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 employee to dispute the termination; 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.’

[3] It will be immediately apparent that the applicant’s application was not filed within the 21 days as required by s 774(1)(a); it was filed 13 days outside of this timeframe. A late application can only be accepted if the Commission is satisfied that ‘exceptional circumstances’ exist to allow an extension of time for the filing of the application, after taking into account the five criteria in s 774(2).The applicant seeks such an extension of time, based on her answer to Q2.3 in the Form F9 in which she said:

‘I am currently suffering from what is described by my treating Psychologist as Anxiety and Major Depressive Disorder (Psychologist report is attached). Due to such condition, I was incapable of meeting the deadline for being too withdrawn from most activities let alone the process of having to prepare a detailed statement that brought back so many unpleasant and depressing memories which were never forgotten anyway. I kindly request that consideration be given to the circumstances in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863 (Deegan C, 20 May 2010) in considering my delay in submitting my application to Fair Work Commission.’

[4] Unsurprisingly, the Council opposes an extension of time being granted and strongly refutes that the applicant was dismissed for an unlawful reason/s; rather, her employment was terminated on medical grounds due to her inability to perform the inherent requirements of her position, having been absent from work since 25 June 2018.

[5] In accordance with my usual practice, I listed the matter for conciliation on 16 May 2019 and issued directions for a hearing of the ‘out of time’ jurisdictional issue on 25 June 2019. At the hearing, the applicant represented herself and Mr C McElroy from the Local Government Association, appeared with Mr H Ross (Industrial Relations Manager) for the Council.

Case for the applicant

[6] The applicant filed hundreds of pages of documents (including a 50 page closely typed document) which she now acknowledges were largely in relation to the substantive merits of her case. Nevertheless, the applicant set out discrete submissions dealing with the ‘out of time’ jurisdictional issue.

[7] The applicant provided oral evidence in cross examination. It was the applicant’s evidence that she first became aware of the 21 day time limit about a week after the termination of her employment. When she filed her application, she attached a number of documents which she believed were necessary for the application to be accepted.

[8] In answer to questions from me, the applicant agreed she had provided no medical evidence of her being unwell in the 21 days after her dismissal. The only medical information she provided was from Dr Emad Girgis and dated 8 April 2019. Dr Girgis stated:

‘To whom it may concern,

Ms Younan was referred to the Pain and Trauma Clinic, by her General Practitioner, Dr Kirlous for the assessment treatment of her psychological stressors.

Ms Younan is a 57 year old woman of Middle Eastern background. Ms Younan reported being treated poorly by her former employers making her unfit to work. Ms Younan has experienced several stressful events which continue to contribute to her psychological condition.

On assessment, Ms Younan presented to the clinic with symptoms such as low mood, insomnia, irritability, anxiety, low self-esteem, lack of energy and motivation, and lack of memory and concentration, avoidance, and hypervigilance, social withdrawal and difficulty concentrating. Based on these presenting symptoms and clinical assessments, Ms Younan continues to suffer from Major Depressive Disorder (MDD). This is in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).

Ms Younan’s diagnosis is in accordance with Diagnostic and Statistical Manual of Mental Disorder (DSM-5). The disorder of Ms Younan is marked with low mood, loss of interest in life and appetite, insomnia, irritability, fatigue, excessive worry and a sense of worthlessness. Furthermore, the cognitive symptoms of this disorder are difficulties with memory and concentrating, weak problem-solving skills, and disorganised thinking.

The psychological symptoms of Ms Younan restrict her cognitive ability to engage in mundane tasks, in addition to her psychological symptoms interfering with her cognition.

Ms Younan has reported that her psychological symptoms have become so overwhelming that they have significantly interfered with her daily living. She is dependent on her family to support her with duties such as grocery shopping and paying bills. She reported that her disorder has also interfered with the way she networks and socializes with family and relatives. She has become socially and recreationally withdrawn.

Ms Younan continues to be involved with therapeutic intervention in the form of Cognitive Behavioural Therapy (CBT). Cognitive Behavioural Therapy is a form of psychotherapy used to target unhelpful thinking and replacing them with healthier thoughts. It is an evidence-based approach that is helpful for treating Depression and Anxiety.

Ms Younan reported, that she has demonstrated signs of improvement, albeit occurring at a slow and gradual pace. Ms Younan stated that she is aware she is not functioning the way she did prior to the onset of her mental illness, but has noticed changes in herself, given she continues to attend psychological treatment in a Cognitive Behavioural Therapy program.

Ms Younan has been compliant in attending her sessions on a regular basis. Ms Younan has benefited from CBT, and reported some improvement. Nevertheless, due to additional stressors in her life, Ms Younan has not been able to progress during therapy. I understand that her former employer (Inner West Council) has terminated her services as of 26/03/19 based on medical ground.

Due to the stall in her treatment progress, it is not recommended for Ms Younan to be in an environment that may cause further psychological harm. Ms Younan’s MDD is not yet stabilized nor managed, thus additional stressors should not be placed. This involves employment and/or engage in training for a period of Six months from the date stated in this letter. It is important that Ms Younan prioritizes her MDD. Placing her in a situation that does not take into consideration her mental disorders will exacerbate her psychological symptoms. She will be required to attend the clinic on a Fortnightly Basis.’

[9] The applicant complained that the Council filed its Form F9 response to the application three days late, and its evidence for these proceedings was filed 1 hour and 25 minutes late, both not in accordance with the Commission’s Rules,. Nevertheless, it must be said that the applicant has had the Council’s evidence for a considerable period of time and there could be no suggestion she was denied an opportunity to respond, which she did by filing detailed reply submissions.

Applicant’s submissions

[10] The applicant set out a background to her application to extend time and referred to her claim of nine years of discrimination, bullying, harassment and public humiliation, principally by Mr Atalay Bas at Ashfield Council and then by Mr Iain Betts at Leichardt Council (as the Councils were known prior to the Inner West Council amalgamation), and for which she was diagnosed as having a major depressive disorder for a psychological condition resulting in her being unfit for work.

[11] The applicant set out the relevant statutory provisions in ss 772 and 773 of the Act and the Fair Work Regulations2009 (the ‘Regulations’) defining temporary absence for the purposes of s 772(1)(a). She referred to other statutory provisions (ss 97(a) and 107) concerning personal leave. The applicant submitted that she had dutifully provided medical certificates for her extended absence of nine months. After exhausting her accrual of personal leave, she requested and was subsequently granted other forms of leave. She had not received any workers’ compensation benefits.

[12] The applicant accepted she needed to address each of the criteria the Commission must take into account to establish ‘exceptional circumstances’ as a basis to extend the time for filing her application (the applicant mistakenly believed her application was 36 days out of time, when it was actually 16 days out of time.)

[13] Principally, the applicant claimed that her psychological condition restricted her ability to engage in any type of tasks. Her mood is one of sadness, loss of concentration and a feeling of worthlessness. This was the reason for the delay (s 774(2)(a)). As to any action taken by her to dispute the termination (s 774(2)(b)), the applicant said she responded by email on three occasions to letters from Council in which termination of her employment was ‘threatened’. She pointed out that other employees had not been terminated for extended absences for illness or on maternity leave. This went also to s 774(2)(e) – fairness between employees in a like position. The applicant submitted there was no prejudice to Council caused by the delay (s 774(2)(c)).

[14] As to the merits of the application, the applicant referred to her evidence of the alleged bullying, discrimination, harassment and public humiliation she had experienced for more than nine years, without any recognition for her work. She claimed the seven warnings she received since 18 November 2011, were unfair.

[15] The applicant set out her claims against Mr Bas and Mr Betts as follows:

‘By Mr Bas while at Ashfield:

(1) Being discriminated against by Mr Bas by changing rules all the time to my disadvantage and giving favouritism to others over me;

(2) Being treated by Mr Bas in an abusive and humiliating manner during conversations and especially during discussions of preliminary assessment of applications;

(3) Being requested, by Mr Bas, to send daily AM/PM emails for at least 2 years upon arrival to and departure from the office for the purpose of keeping tabs on me;

(4) Having my good work not acknowledged or reported to the then director and therefore not recommending my salary to be increased since 2008 until my relocation to Leichardt in 2017;

(5) Responding to my grievance in 2012 as oppose (sic) to organizing for an independent person to deal with it;

(6) Influencing my development applications stats in a number of different ways without fairly declaring any contribution to such stats and then penalizing me for them by issuing unfair warnings to me. Such stats were influenced by, among other things, the following actions:

a. Signing my assessment reports weeks after being completed and then using the dates of signing as being the dates of determination resulting in the addition of several weeks to the stats of my applications that did not reflect my performance;

b. Burdening me with extra Pre-lodgement applications, CRMs (written planning enquiries), which did not count towards DA stats but only took away significant time from DA applications that was available of others to use for such applications and hence created unequal chances leading to unfair stats;

(7) Being humiliated in public in front of my colleagues as well as the then General Manager during a team meeting during which the stats that were manipulated and that do not reflect my performance were displayed on a massive monitor screen without fairly acknowledging or accepting any responsibility or contribution;

(8) Being strongly criticised for sending any good suggestions for improvement to the general email of the planning team;

(9) Having double standard (sic) applied to me;

(10) Being burdened by work plans which were not only unachievable but also sent mostly late or well outside the work plan period;

(11) Being issued with two different warnings in December 2016 with only days between them;

(12) Being subjected to indirect/coded verbal aggression;

(13) Having my reputation damaged by the spreading of a rumour about me having no planning qualifications;

(14) Having my work arrangements deliberately changes (i.e. among other incidents, duty rosters - Christmas 2016).

By Mr Betts while at Leichardt:

(1) Being subjected to unjustified criticism and public humiliation which crushed my confidence;

(2) Having my good works not acknowledged;

(3) Being discriminated against by tolerating other peoples’ mistakes while crushing me for a mistake I have made in 2018 after being psychologically injured as a result of the type of treatment I have been subjected to, both in Ashfield and in Leichardt.’

[16] The applicant summarised the merits of her case as follows:

‘(1) My salary has never been recommended to be increased since 2008;

(2) My good works are not acknowledged and my DA stats we influenced by factors that do not reflect my performance and hence I was issued with unfair warnings as demonstrated in the attached witness statement;

(3) Council has denied me justice in failing to identify and stop the forms of bullying, discrimination and harassment, which I was subjected to by Mr. Bas at Ashfield and then by Mr. Betts at Leichhardt;

(4) I developed a psychological condition due to such injustice;

(5) My employment was unlawfully terminated.’

Case for the Council

[17] Council relied on a witness statement from Mr Harry Ross, Industrial Relations Manager, in which he set out the relevant chronology of this matter. Mr Ross has been responsible for dealing with and managing matters related to the disciplinary action taken against the applicant and her subsequent absence from the workplace. Mr Ross noted that concerns with the applicant’s performance commenced from around 2012. This resulted in two warnings being issued to her in 2012, which she disputed.

[18] On 11 November 2015, the applicant lodged a bullying complaint against her supervisor, Mr Atalay Bas. An external investigator found none of the allegations, which allegedly extended over a period of nine years, were substantiated. In late 2016, the applicant received three warnings in relation to her performance (2 November 2016, 7 and 21 December 2016). On 13 December 2016, the applicant lodged a grievance against the 7 December 2016 warning. An investigation into this grievance found the actions taken by the Council were fair and justified and concluded:

•  ‘The average time taken for you to determine applications is consistently and markedly higher than your colleagues, and has fallen short of the standard required by you.

•  The number of ‘CRM’s’ allocated to you was higher than two of your colleagues. Having appraised myself of the nature of the requests, and the general time taken to complete them, I do not consider that this is justification for large discrepancies between your average application processing times and those of your colleagues;

•  The number of pre-lodgement applications allocated to you was comparable with your colleagues;

•  Your grievance, in my view, has provided no evidence of discrimination, and I do not consider Mr Bas has treated you in an unfair manner given the record of your performance.’

[19] Further concerns were raised about the applicant’s performance by two different managers in 2017 and 2018. After receiving a further formal warning on 21 June 2018, the applicant left the workplace and applied for, and was granted paid sick leave pursuant to Cl 21 of Local Government (State) Award 2017.

[20] Mr Ross said that the applicant utilised various forms of leave from 25 June 2018 to the date her employment was terminated (25 March 2019) – a period of nine months. During this period (and earlier in April 2017) the applicant’s fitness for work was assessed, at Council’s request, in August and December 2018. A psychologist’s report in December 2018 concluded the applicant was unfit for work and a return to work ‘in her mind’, was conditional on her receiving an apology and acknowledgment of her bullying claims as substantiated.

[21] On four occasions in early 2019, (15 and 24 January 2019, 15 and 26 March 2019), the Council wrote to the applicant to advise that given the medical evidence that she was unfit to return to work, and with no likelihood of her being able to do so in the foreseeable future, the Council was unable to keep her position open and that her termination of employment was foreshadowed.

[22] Mr Ross observed that on 24 August 2018, the applicant lodged a workers’ compensation claim in relation to her condition. StateCover, the Council’s workers compensation insurer, rejected the claim. That decision was appealed and subsequently dismissed. In respect to prejudice to the Council, should the application be accepted out of time, Mr Ross believed the applicant’s claim related to historic complaints going back to 2009, involving eight Managers and/or Team Leaders. Many of these employees are no longer employed by Council and their whereabouts are unknown.

[23] In cross examination, Mr Ross said he was not aware of any Council policy which prevents an employee gaining access to a Council computer while still an employee. Mr Ross was asked about how long warnings stand once issued and what the period should be between one warning and the next. He agreed the applicant had raised these questions with him when they last met. He denied saying that there should be at least 12 months between warnings.

[24] Mr McElroy submitted that despite Dr Girgis’ report, of which the applicant did not rely on in any event, the Doctor’s opinions do not explain why the applicant could not file her application in time. The evidence does not disclose the applicant was ‘in no fit condition’ or suffering from a severe impairment to cognitive capacity to prevent her from doing so; see: Ovenden v Fortezza Pty Ltd t/a High Country Automotive Group [2010] FWA 3863 and Ellis v Melton Shire Council [2012] FWA 1033.

[25] Further, the applicant does not suggest her medical condition was exacerbated by her dismissal. During her employment, she consistently made detailed written submissions to Council in support of her claims of ill treatment and in defence of the warnings against her for poor performance. Mr McElroy noted the applicant prepared a 41-page document titled ‘Statement demonstrating unfair dismissal of Daisy Younan from Work at Inner West Council’. This would have taken a substantial amount of time, concentration and attention in order to prepare a document of such length and detail.

[26] Mr McElroy submitted that the applicant took no steps to challenge her proposed termination of employment on medical grounds (s 774(1)(b)). While the respondent is not prejudiced by the delay in filing the application, it will be prejudiced in meeting historic allegations going as far back as 2012. Two of the persons named by her, are no longer employed by the Council. As to the merits of the application, Mr McElroy said that a simple conversation long ago between the applicant and Mr Bas about a religious cross worn by the applicant, cannot possibly demonstrate that the applicant’s dismissal was due to her religion.

[27] In respect to the applicant’s claim she was dismissed because of her temporary absence due to illness Mr McElroy relied on Regulations 6.04(2) and (3) of the Regulations. He submitted that accessing various forms of leave for her absence over a period of nine months would not satisfy the effect of Regulation 6.04 in that:

(a) the absence extends for more than three months, and the employee is not on paid personal/carer’s leave for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence; and

(b) the total absence of the employee within a 12 month period has been more than 3 months, and the employee is not paid personal/carer’s leave for a purpose mentioned in paragraph 97(a) for the duration of the absence.

[28] Mr McElroy submitted that applicant’s case is doomed to fail. Further, there is no causal connection between the circumstances of this case; the applicant was consistently found to be unfit for work in the context of her unsubstantiated allegations of discrimination, bullying and harassment and her performance issues, which were properly managed, lacking any causal connection with any unlawful reason for termination.

[29] In oral submissions, Mr McElroy addressed the ‘fairness between employees’ criterion, by rejecting the applicant’s generalised submission about four employees who were on leave for a considerable period of time; two were on maternity leave, which is irrelevant; and two others said by the applicant to have been ill. There is no evidence of their circumstances. This is a neutral factor in this case.

In reply

The applicant said Dr Girgis’ report was not submitted to support her absence from work; rather, it was provided to demonstrate her incapacity to file the application in time. This was cogent and professional evidence of the restriction of her cognitive ability to engage in mundane tasks. She frequently loses her memory, including when driving.

[30] The applicant rejected Mr McElroy’s submission that she had consistently made detailed articulate submissions about being ill-treated and in defiance of warnings about her performance. She claimed these were warnings in retaliation to her complaints against Mr Bas. In any event, there were large gaps between the warnings which were, in any event, unfair, particularly in respect to her being required to meet unachievable work plans.

[31] The applicant said that her detailed and lengthy submissions had evolved over time (ten months) and her experiences were collated for the purposes of making statements in respect to her workers’ compensation claim. She rejected Mr McElroy’s ‘insinuation’ that her condition could not have impaired by her ability to prepare statements. The applicant reiterated that while she was unfamiliar with the Act, she became aware of the time limit for unlawful termination applications, only a few days after the termination of her employment. She did not have time to file her application, given her condition, and her requests to Council for her case to be considered like others who had been treated in similar circumstances.

[32] The applicant claimed that the religious discrimination she experienced from Mr Bas was not overt. He used discrete and unannounced tactics to discriminate against her by issuing her with warnings, not recognising her work, burdening her with extra work and humiliating her in front of others, over an extended period of time. This was the link to her termination of employment.

The applicant seeks the Commission’s support in acknowledging:

(a) ‘Receiving a response to my 2012 grievance from the person I am complaining about, being Mr Bas, is unacceptable;

(b) Receiving work plans specifying certain tasks to be achieved within specific periods either late or after such periods lapse, as detailed in paragraph 22(a) of witness statement, is NOT considered proper or fair performance management and such work plans are seen as set to fail plans.

(c) Conducts (sic) by Mr Bas, that created stats which did not reflect my performance had strong foundation of bullying and harassment (i.e. assessment report for (Development Application cited) was signed approximately 7 weeks after I had completed the report by Mr Bas.

(d) The unfair warnings given to me by Mr Bas as a form of bullying, discrimination and harassment, which Council has failed to identify, has led to my unfair dismissal in an unlawful termination manner after 14 years of loyal service to Council.’

CONSIDERATION

[33] In Tamu v Australia for UNHCR [2019] FWCFB 2384, a recent Full Bench of the Commission summarised the relevant jurisdictional principles 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. See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

[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. See Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]. A decision whether to extend time under section 366(2) involves the exercise of a discretion: Halls v KR & MA McCardle and Ors [2014] FCCA 316.

[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) [2011] FWAFB 975as 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: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).’

[34] 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 774(2). 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 McRae [2017] FWCFB 4033. However,in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, Lawler VP stated that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’ in allowing an extension of time for lodging applications, 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 774(2) establishes circumstances which are ‘unusual, out of the ordinary, special or uncommon.’

[35] Although the above cited cases were decided under the General Protections and Unfair Dismissal provisions of the Act, it is a principle of statutory construction that, where a word or phrase appears elsewhere in the same Act, its meaning is the same, unless there is an express intention to the contrary.

[36] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901,a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) 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 in filing. 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.

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

The reason for the delay (s 774(2)(a))

[38] The applicant had been absent from work since 25 June 2018 up to the termination of her employment, and claims that her medical condition meant she was unfit for work. There is no dispute that the applicant is, and remains, unfit for work, with no likelihood of her returning to work in the foreseeable future. She had been out of the workplace for nine months. The applicant claimed the primary reason for the delay in filing her application was due to her psychological condition.

[39] The only medical evidence filed by the applicant relevant to the period after 26 March 2019 is a letter dated 8 April 2019, from Dr Emad Girgis, Clinical Psychologist. Dr Girgis notes the applicant is undertaking Cognitive Behavioural Therapy (‘CBT’) with signs of improvement. There is no mention of any medication being prescribed by Dr Girgis or any other medical practitioner. Dr Girgis recommended she not engage in seeking employment and/or training for six months, and she attend the CBT Clinic once a fortnight. Dr Girgis was aware that the applicant had been dismissed for her condition, but pointedly, makes no finding or prefer on opinion that she would have been unable to file a Form F9.

[40] In my view, rather than supporting the applicant’s case for an extension of time, Dr Girgis’ letter corroborates Council’s decision that she was not fit to return to work in the foreseeable future and that the applicant’s case alleging an unlawful termination on account of temporary illness, has little prospect of success.

[41] There is no doubt that a person’s mental or psychological condition may be a factor going to their ability to file an application with the Commission within time. In some cases this may be a pre-existing condition which is exacerbated by the stress and anxiety of one losing their employment. In Scott v Steritech Pty Ltd t/a Steritech[2019] FWC 2970 (‘Steritech’), I observed at [93] as follows:

‘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.’

[42] The applicant in Steritech did not have a pre-existing medical condition. I accepted the loss of his 12 years of employment due to redundancy, resulted in a significant impact on his psychological wellbeing, affecting his cognitive function and resulting in a lengthy hospitalisation. There were no performance issues over the applicant’s 12 years of service. The facts and circumstances of this case are entirely different. The applicant claims she has been the subject of bullying, discrimination and harassment for over nine years. There is no evidence to suggest she was hospitalised during this period, nor is there any evidence of her being prescribed medication for her condition. She continued to work and challenge her warnings of poor performance, and lodge grievances against the warnings – none of which were substantiated by the investigations.

[43] During the recent history, the applicant has been gathering and compiling documents, preparing lengthy, erudite submissions, and contacting the Council and the Fair Work Ombudsman. She filed a workers’ compensation claim, and then unsuccessfully appealed the rejection of her claim. Given this level of activity, and the lack of any medical evidence that the applicant was incapable of filing a simple F9 form, I cannot accept that the applicant’s medical condition, regrettable as it may be, is an acceptable reason for the delay in filing her application. In addition, I note the applicant’s answer to this activity was that she had been collating documents relevant to her case for 10 months and not in the 21 days after her dismissal. This is a curious, counterintuitive submission. If her detailed submissions were already prepared over a long period, how much easier would it have been to file a simple Form F9 and attach her gathered material to it?

[44] It must be stressed that ‘unfitness to work’ does not necessarily equate to cognitive incapacity to function relatively normally or undertake usual home, business, domestic or social activities. Further, I note that the applicant’s evidence that she first became aware of a time limit for the application about a week after her dismissal. It is incomprehensible that she took no steps to lodge an application, within time, knowing of said time limit. She provided no explanation why she then waited a further two weeks before filing her application.

[45] It is also of some concern that the applicant claims years of bullying and unanswered grievances, but took no steps to utilise the Anti-Bullying jurisdiction of this Commission that has been in place since 1 January 2014. It seems to me that the applicant was more determined to seek an unconditional apology and acknowledgement that her historic claims of bullying were entirely justified, rather than applying herself to the numerous concerns of different managers, as to her poor performance in her role. Arguing about the time between the warnings is not the point.

[46] It is also necessary for me to record that in an earlier conciliation, and during the hearing, the applicant presented her case calmly, unemotionally and politely. She did not appear to be anxious, stressed or confused. Her entire focus in both proceedings was to set out with meticulous attention to detail, dates and persons involved incidents, which are alleged to have happened up to eight years prior. She quoted various local government laws and regulations. It is difficult to reconcile her claimed symptoms of memory and concentration loss with this capacity of recall. While I accept the applicant was unfit for work, and although I am not a doctor, I have great difficulty accepting the applicant has - or had at the relevant time - an impairment of such magnitude such as to prevent her from engaging in normal human activities and social interaction.

[47] In summary, I am not persuaded that the applicant’s primary reason of a mental condition is a satisfactory explanation for the delay in filing her application. That finding tells against the Commission granting an extension of time.

Any action taken by the employee to dispute the termination (s 774(2)(b))

[48] The applicant challenged the three letters sent to her from the Council before her termination on 26 March 2019, in which she was on notice that the Council was considering terminating her employment. She does not claim that her termination exacerbated her medical condition. The applicant took no action to dispute her dismissal until filing this application on 2 May 2019, notwithstanding she was aware of a time limit about a week after 26 March 2019. This factor tells against an extension of time being granted.

Prejudice to the employer (including prejudice caused by the delay) (s 774(2)(c))

[49] The respondent conceded it would not experience any prejudice by the delay in dealing with, and responding to the applicant’s unlawful termination application. Of course, the mere absence of prejudice to the employer is an insufficient basis to grant and 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 774(2)(d))

[50] 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) per Guidice 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.’

[51] 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 lodgment. 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.’(my emphasis)

[52] As mentioned earlier, the bulk of the applicant’s material relates to her claims of bullying, discrimination and harassment for over nine years. I highlighted those matters at [15] above. It seems to me that the applicant has conflated the reasons for her alleged medical condition, with the stated reason for the termination of her employment in that she could not comply with the inherent requirements for her role for over nine months and with no prospects of her returning to work in the foreseeable future. In other words, she confuses ‘cause’ with ‘consequences’. Section 773 of the Act is concerned with unlawful reasons for termination, one of which is a temporary absence for illness. The applicant’s absence was neither temporary, nor would it have been unlawful, if the Workers Compensation Act 1987 (NSW) had applied. I also agree with Mr McElroy that given the meaning of temporary absence, as defined in the Regulations,it is unlikely to have applied to the applicant’s circumstances. For these reasons, while I am not entirely convinced that applicant’s prospects of success are hopeless, it must be said the prospects of success are remote. This factor tells against the grant of an extension of time.

[53] As to the applicant’s claim of unlawful termination based on religious discrimination, the best the applicant could point to, concerned an undated, alleged conversation between her and Mr Bas, about a religious cross on the applicant’s wrist, and his alleged inquiry as to whether her young sons had such crosses on their wrists. The applicant claimed Mr Bas’ attitude had changed towards her after this incident and before her 2008/9 performance review. This must mean this incident occurred in or around 2008. To suggest that her termination of employment over nine years later, as a result of this innocuous inquiry (assuming it did, in fact, occur) and with not a skerrick of evidence, was based on her religion, is patently absurd and must be rejected.

Fairness between other persons in a like position (s 774(2)(e))

[54] 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 importance 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.’

[55] The applicant claims she was aware of two seriously ill Council employees who had been absent from work for extended periods, and two who had been on maternity leave for extended periods, without having their employment terminated. It must firstly be said that the applicant provided no evidence of the facts and circumstances relating to the seriously ill employees, which may demonstrate their cases to be completely unlike hers; and secondly, the taking of a maternity leave is a statutory right for employees and could not possibly be relevant to the applicant’s circumstances. Moreover, it could not be seriously posited that maternity leave is a temporary absence for illness.

[56] Accordingly, the applicant has not established any differential treatment between her and other employees in a like position. This factor tells against the grant of an extension of time.

CONCLUSION

[57] Taking into account all of the matters in s 774(2) 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 her to lodge her unlawful termination application. Accordingly, the application must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Mr C McElroy and Mr H Ross for respondent.

Hearing details:

Sydney.

2019:

25 June.

Printed by authority of the Commonwealth Government Printer

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