Damian Weddell v Daryl Pelchen Architects

[2016] FWC 4713

[2016] FWC 4713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Damian Weddell
v
Daryl Pelchen Architects
(C2016/3307)

COMMISSIONER CIRKOVIC MELBOURNE, 13 JULY 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application

[1] On 8 April 2016 Mr Damian Weddell (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Daryl Pelchen Architects (Respondent).

[2] The Applicant commenced employment with the Respondent on 11 January 2016. He was a senior architect. He says that he was dismissed on 17 March 2016 and that the dismissal took effect on that day.

[3] The application therefore was lodged 1 day out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[5] The Applicant submits that he was dismissed because of his depression. A breach of s.351 and 352 are alleged.

Respondent’s Submissions

[6] The Respondent submits that the Applicant’s employment was terminated due to his inability to work autonomously, to meet critical deadlines whilst working across a number of projects simultaneously, as a senior professional of the firm. The Respondent further submits that the Applicant was not terminated because of, or for reasons including, his alleged depression or any absence from work by reason of an illness or injury. 1

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where the Full Bench said:

[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.

[Endnotes not reproduced]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Background

[13] On 27 April 2016, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 3 June 2016.

[14] The Applicant was self-represented. The Respondent was represented by Mr Jim McKenna of Counsel.

Matters to be taken into account pursuant to s.366(2)

[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[16] The Applicant submits that the principle reason for the delay was his state of mind, following his termination of employment. He submits that for the first two weeks following his dismissal he was trying to come to terms with what had happened. He submits that during those first two weeks he discussed his termination with friends and colleagues and that he began to realise his dismissal was unfair and discriminatory. The Applicant submits in the third week he began to investigate and engage in the application process. He submits the simple task of writing the application became arduous in light of the worsening of his depression and in this context he miscalculated the closing date and submitted the application a day late. The Applicant submits he only became aware his application was late when he received follow up correspondence from the Commission. 3

[17] Dr Stephen McConnell has been providing on-going psychiatric treatment to the Applicant since October 2015. This treatment has been for a severe Major Depressive Disorder (MDD). Dr McConnell provided a letter in support of the Applicant’s extension of time application dated 2 May 2016. 4 In that letter, Dr McConnell said that the Applicant’s delay in lodging his application occurred due to the on-going symptoms of his MDD deteriorating just after his dismissal from work. Dr McConnell said the symptoms, which lasted for about two weeks following the dismissal, included feeling confused, poor problem solving, social withdrawal and generally not being able to cope with trivial daily tasks. Dr McConnell said the Applicant then had to spend two days seeking legal advice, with a further three to four days collating the information, and the Applicant’s speed and quality to do so was impeded by his MDD. Dr McConnell said the Applicant’s impaired cognitive abilities led to the Applicant miscalculating the time he had left to submit his application.

[18] During cross-examination Dr McConnell confirmed that, according to his notes, the 17 May 2016 was the first time he had a face to face consultation with the Applicant after the dismissal. Dr McConnell confirmed that the letter dated 2 May 2016 had been based upon telephone calls with the Applicant during which the Applicant provided subjective reports of his symptoms. Dr McConnell confirmed that the Applicant’s subjective reports were that his symptoms had intensified and been exacerbated in the two weeks immediately after his dismissal. Dr McConnell confirmed that his assessment would have been more accurate if it had included mental state examination as the result of a face to face meeting. Dr McConnell confirmed he could not say that the Applicant was incapable of lodging the application in the first two weeks following his dismissal. Dr McConnell said his latest assessment of the Applicant in May was that the Applicant was exhibiting residual symptoms of his MDD but was improving. Dr McConnell confirmed that he could not categorically say he knew what caused the miscalculation; however that he could say it was clinically possible that the symptoms the Applicant described are consistent with his MDD symptoms. Dr McConnell confirmed that the symptoms he was referring to were those experienced in the initial two weeks following the dismissal. Dr McConnell confirmed it is possible that after the initial two weeks the symptoms would have improved to more of a background level.

[19] During cross-examination the Applicant denied that he had told Dr McConnell that his symptoms had improved after the initial two weeks. The Applicant said he could still have the same level of functionality but that level could plateau; the Applicant said he could be good one day and not be able to get out of bed the next. The Applicant denied that he obtained legal advice; he said that he had rung one or two people to obtain quotes, but nothing further. The Applicant said those telephone calls would have happened on either Friday 1 April 2016 or Monday 4 April 2016. The Applicant confirmed that his application is dated 7 April 2016, that it had been late in the evening when he had completed the form and that he had not lodged it until the 8 April 2016 because he believed he would have been within time.

[20] The Respondent submits the fact the delay was short does not alter the requirement to establish exceptional circumstances. The Respondent submits that a medical condition such as a MDD does not, in and of itself, provide exceptional circumstances. The Respondent relies on the decision of the Commission in Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd T/A Crossy’s Crane Hire [2013] FWC 8866:

“[24] The Respondent drew attention to the well known case of Nulty v Blue Star Group Pty Ltd (Nulty) and to Custo v Norstar Recycling Pty Ltd. In the latter case, the Commission held that depression and anxiety on Mr Custo’s part (coupled with other factors) were not exceptional circumstances. I note other decisions such as Muir McMeeken v Action Industrial Catering Pty Ltd, Rose v BMD Constructions Pty Ltd and Ballarat Truck Centre Pty Ltd v Kerr establish clearly that depression is not of itself exceptional in the Nulty sense….”

[Endnotes not reproduced]

[21] The Respondent further submits that Dr McConnell did not say the Applicant was incapable of lodging an application with the Commission during the first two weeks following his dismissal. The Respondent submits that despite the Applicant’s symptoms, he was able to discuss his termination with friends and colleagues during the first two weeks. The Respondent further submits it is apparent that by the third week, the Applicant’s symptoms had diminished and he was capable of compiling his application. The Respondent submits the Applicant had the whole of the 21 day time period in which he could have made the application. The Respondent relies on the decision of the Commission in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903:

“[26] It seems to me that Mr Shaw simply miscalculated the date on which the application had to be made and that is the explanation for the delay. As I indicated, even if I accept, and I do accept, that the error was made in exceptionally stressful circumstances where symptoms of his illness impaired his thought process, that merely provides an explanation for the miscalculation and perhaps an explanation for part of the delay. It does not provide an explanation for Mr Shaw's action to delay the application until the last day that he had calculated.”

The Respondent submits the Applicant’s evidence, taken in its totality, does not provide an acceptable explanation for the delay, nor does it amount to exceptional circumstances.

[22] For this consideration there must be an acceptable reason for the delay 5 and this must be for the whole period that the application was delayed.6 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[23] There is no evidence of the Applicant taking action to dispute the alleged dismissal apart from lodging this application. This weighs against a finding of exceptional circumstances.

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

[24] Prejudice to the employer will go against the granting of an extension of time. 7 The Respondent submits it would incur the additional costs and administrative burden of defending the application, should an extension of time be granted. Whilst I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[25] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 8 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.9 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[26] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 10 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[27] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[28] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 11

[29] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[30] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Damian Weddell, Applicant;

Jim McKenna of Counsel, for the Respondent.

Hearing details:

2016

3 June (Telephone hearing).

 1   Employer Response to General Protections Application, lodged 15 April 2016, p. 3-4

 2   [2011] FWAFB 975.

 3   Exhibit A2

 4   Exhibit A1

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 6   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 8   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 9   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 10   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 11   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

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