Douglas William Diver v Pilbara Iron Company (Services) Pty Ltd
[2023] FWC 3053
•27 NOVEMBER 2023
| [2023] FWC 3053 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Douglas William Diver
v
Pilbara Iron Company (Services) Pty Ltd
(U2023/9922)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 27 NOVEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – mental stress – relocation – bereavement
Introduction
Mr Douglas William Diver (the Applicant) applied for an unfair dismissal remedy, having been dismissed by Pilbara Iron Company (Services) Pty Ltd (the Respondent) on 24 August 2023. The Respondent objected to the application on the ground that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
The Applicant concedes his application was filed on 11 October 2023 and was therefore submitted 27 days after the statutory deadline. The Applicant attributes the delay in filing his application on mental stress and having to relocate to a different location after his dismissal.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect.
It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted. The parties were content to have the matter determined ‘on the papers’ and in the absence of a factual dispute, I determined this was the appropriate course.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.
The Applicant commenced work for the Respondent on 12 October 2013.
According to the Respondent, during the months of March 2021 to April 2023, the Applicant sent repeated text messages to a work colleague (the Impacted Person).
The Applicant stated that in the period from March to May 2021, the Impacted Person and him were very good work friends and were involved in an ‘intimate’ relationship.[1]
The Respondent stated that in May 2022, the Impacted Person requested that the Applicant cease all contact with her, specifically asking the Applicant to stop messaging her, not speak to her other than for work-related purposes, desist from giving her gifts and visiting her place of residence.[2]
The Applicant acknowledged that whilst the Impacted Person’s text in May 2022 extended to not giving her gifts, it did not refer to the Applicant not visiting her place. Furthermore, said the Applicant, he was invited to a group visit at the Impacted Person’s place in July 2022.[3]
Notwithstanding the Impacted Person’s request, the Applicant is said to have messaged the Impacted Person on more than one occasion during the period of May 2022 to April 2023.[4] Further, the Respondent reports that between the months of May 2022 and August 2022, the Applicant messaged a Controller based at the Operations Centre, on more than one occasion, to be on the same ‘run’ and crib breaks as the Impacted Person.[5]
The Respondent alleges that in May 2022, December 2022, May 2023 and July 2023, the Applicant left unwanted gifts at the home of the Impacted Person.[6] The Applicant is said to have also left a gift for the Impacted Person at a mutual friend’s house.[7]
On 24 February 2023, the Respondent directed the Applicant to cease all contact with the Impacted Person, and after this direction, the Applicant is said to have requested to train the Impacted Person on a piece of equipment which would have involved the Applicant being physically close to the Impacted Person.[8]
The Applicant noted that in respect to messages to the Controller, he did not realise that such messages were making the Impacted Person uneasy.[9] The Applicant continued that during the formal training of the ‘Modular system’ he was just trying to work out what happened to their friendship (between him and the Impacted Person) from April to May 2022 that changed so dramatically.[10]
In respect of the period from May 2022 until April 2023, the Applicant clarified that he and the Impacted Person were work colleagues, they never spoke ill of each other, and acted professionally at work according to the Respondent’s Values.[11] The Applicant noted that there had been occasions where the Impacted Person had presented to a mutual work colleague’s house whilst he was there. Notwithstanding his presence, the Impacted Person continued to socialise with the mutual work colleague.[12]
The Applicant noted that in May 2022 he gave the Impacted Person a birthday gift for a special occasion and that she thanked both him and the maker of the gift later at work.[13] He had also given the Applicant and her partner a Christmas gift in the form of bottles of alcohol, as he had other friends at the time.[14]
The Respondent stated that after the receipt of a complaint, the allegations were escalated to the Respondent’s Business Conduct Office for investigation.[15]
On 14 July 2023, the Respondent instructed the Applicant not to work (on full pay) and issued him with a letter of allegations. The Applicant was invited to respond in writing to the allegations.[16]
The Respondent stated that having considered the Applicant’s responses, the allegations against the Applicant were nevertheless substantiated and on 21 August 2023, the Applicant was invited to show cause as to why his employment should not be terminated.[17]
The Respondent said that it considered the Applicant’s response as to why he should not be dismissed, but on 24 August 2023, advised the Applicant that his employment would be terminated for breaches of the Respondent’s Code of Conduct and Anti-Discrimination, Sexual Harassment and Bullying Policy.[18]
The Applicant stated that he was disappointed in the dismissal and did not think his conduct warranted that level of discipline given most of the allegations were of a private nature and occurred outside of work.[19]
Extension of time
Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[20] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[21] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[22]
Prior to determining the matter, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [4] of this decision. Each of these factors are considered below.
3.1 Reason for the delay
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.[23] 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. 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.[24]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[25] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[26]
One of the reasons relied upon by the Applicant for the late lodgement of his application was mental stress. The Applicant explained that he had been under a huge amount of mental stress following his dismissal but noted the decline in his mental wellbeing started during the period of his stand down, show cause and thereafter the termination of his employment.[27] The disciplinary process had coincided with the 12-month anniversary of the loss of his best friend in addition to the death of his mother.[28]
Following his dismissal, the Applicant states he was required to relocate to another town, after having lived where he had been for 18 years.[29] Such move meant finding a suitable rental, settling into a new environment, and then re-entering the workforce.[30] The Applicant submitted that these factors consumed a considerable amount of time and energy.[31]
Turning first to the Applicant’s contention that mental stress contributed to the delay in making his application. While sympathetic to the Applicant’s circumstances, there is simply no evidence to corroborate that he was so incapacitated from stress that he was unable to make an unfair dismissal application within the requisite period. It is common for employees to suffer shock and trauma because of dismissal from employment.[32]
In Shaw v Australia and New Zealand Bank Group Ltd, the majority of the Full Bench observed that stress, shock and confusion, in and of themselves, were not exceptional. [33] The majority continued that the loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[34]
An applicant’s medical condition, however, can be so significant that it affects their mental capacity to prepare and file an application. As acknowledged in Mamo v ICLED Australia Pty Ltd, in some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.[35]
In Roberts v Westech IT Solutions Pty Ltd,[36] Senior Deputy President O’Callaghan allowed an applicant further time to make his application after being satisfied that the primary reason for the delay related to the applicant’s depression. In that case, the applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, his use of prescription medication and details of his history of panic attacks after stressful events.[37]
However, in Underwood v Terra Firma Pty Ltd (Underwood),[38] the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from making the application within 21 days. At paragraph [15], the Full Bench clarified:
Roberts cannot be taken as authority for the proposition that in every case where the applicant is suffering from depression, exceptional circumstances will be found for the purposes of s.394(3) of the Act.
Observing that the applicant led evidence from his treating doctor, the Full Bench in Underwood stated that ‘[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.’[39] The Full Bench affirmed the finding at first instance that the medical evidence ‘did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame’ and also the finding at first instance that no exceptional circumstances were established.[40]
In the case before me, the Applicant brings no medical evidence in the form of a medical report or certificate to support his contention of mental stress, and it is apparent from his evidence that he was not so incapacitated that he could not attend activities of daily living such as relocating, securing a property in which to live, and re-entering the workforce.
Turning to the change in the Applicant’s living arrangements following the termination of his employment and the associated stress that accompanies such process, the Commission has not considered these circumstances to be exceptional.[41] Whilst appreciative that the Applicant’s relocation involved travel between two regions of Western Australia and that he was relocating from a location in which he had lived for nearly 18 years, I am unpersuaded that such move constituted exceptional circumstances. Whilst challenges associated with relocating had purportedly significantly impacted the Applicant’s ability to focus on his ‘current responsibilities’, relocation is not something that is out of the ordinary course following the end of an employment relationship.
It is to be appreciated that the anniversary of family member’s death or that of a friend, may cause profound upset and may aggravate a mental illness. A recent or unexpected passing of a close family member may, when accompanied by other extenuating factors, constitute an exceptional circumstance.[42] However, in Higgins v FQM Australia Nickel Pty Ltd,[43] the Full Bench affirmed at paragraph [28] what was stated in Australian Postal Corporation v Zhang:[44]
The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
As observed, in this matter, whilst appreciative that the Applicant was grappling with the anniversaries of the deaths of his mother and friend, I am not persuaded on the evidence before me that such circumstances are exceptional such as to explain the reason for the delay.
I am not satisfied that the Applicant has provided a credible explanation for the period of the delay, and this therefore weighs against a finding of exceptional circumstances.[45]
3.2 Whether the person first became aware of the dismissal after it had taken effect
At all material times from the time the Applicant was notified of his dismissal on 24 August 2023, until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I therefore consider this to be a neutral factor.
3.3 Action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[46] I have considered all submissions and the evidence in this respect.
The Respondent submitted that prior to the Applicant making his application, it had received no communication from the Applicant challenging his dismissal. This was the case notwithstanding that the Applicant had the opportunity to lodge a ‘Fair Treatment assessment’ in accordance with the Respondent’s ‘Fair Treatment Policy’, if he disagreed with his dismissal.
I consider there to be sufficient evidence to support the finding that the Applicant did not challenge his dismissal. However, in the circumstances, I am content to find this a neutral factor.
3.4 Prejudice to the employer
Having considered the submissions of the parties on this factor, I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances. Whilst I do not consider the grant of an extension of time would prejudice the Respondent, it is to be appreciated that the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[47]
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[48] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:
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.[49]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[50] The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. I note in this matter that with respect to the merits of the application, the parties are fundamentally opposed as to how certain events leading up to the Applicant’s dismissal are to be interpreted. It is for the reasons cited that I have concluded this factor to be one that is neutral.
3.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[51]
I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed and as such I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, there are no factors that weigh toward a finding of exceptional circumstances when the totality of the evidence is considered. I am therefore not satisfied that there are exceptional circumstances that support an extension of time.
While the conclusion reached goes against the Applicant in this case, it should not be interpreted that the Applicant’s circumstances leading up to and after his dismissal were not challenging or stressful. It is simply the case that the circumstances presented are not exceptional and it follows that it is not fair and equitable to grant the extension.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[52] will be issued with this decision.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Applicant’s outline of argument: extension of time, [7(1)(a)] (Applicant’s Outline).
[2] Form F3 – Employer response to unfair dismissal application, [3.1(2)] (Form F3).
[3] Applicant’s Outline (n 1) [7(1)(b)].
[4] Form F3 (n 2) [3.1(3)].
[5] Ibid [3.1(4)].
[6] Ibid [3.1(5), (6) and (8)].
[7] Ibid [3.1(9)].
[8] Ibid [3.1(7)].
[9] Applicant’s Outline (n 1) [7(1)(d)].
[10] Ibid.
[11] Ibid [7(1)(c)].
[12] Ibid.
[13] Ibid [7(1)(e)].
[14] Ibid [7(1)(f)].
[15] Form F3 (n 2) [3.1(11)].
[16] Ibid [3.1(12)].
[17] Ibid [3.1(14)].
[18] Ibid [3.1(15)].
[19] Applicant’s Outline (n 1) [5].
[20] (2011) 203 IR 1, 5 [13].
[21] (2018) 273 IR 156 (Stogiannidis).
[22] Ibid 165 [38].
[23] Ibid 165 [39].
[24] Ibid.
[25] Long v Keolis Downer (2018) 287 IR 361, 371 [40]
[26] Shaw v Australia and New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12] (Shaw).
[27] Applicant’s Outline (n 1) [4].
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].
[33] Shaw (n 26) 366 [15].
[34] Ibid.
[35] [2021] FWC 3903, [19].
[36] [2014] FWC 4226.
[37] Ibid [5].
[38] [2015] FWCFB 3435.
[39] Ibid [15].
[40] Ibid [16].
[41] See, eg, Watkins v ISS Health Services[2022] FWC 1452, [61]; Riley v Challenge Hospitality Pty Ltd[2018] FWC 6028, [44], [49]; Tatley v Rapid Response Revival Research Ltd[2020] FWC 4906, [22].
[42] ISS Security Pty Ltd v Kaparos[2015] FWCFB 3927, [16].
[43] [2023] FWCFB 113.
[44] [2015] FWCFB 5285.
[45] Stogiannidis (n 21).
[46] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.
[47] Ibid.
[48] (1997) 140 IR 1.
[49] Ibid 11.
[50] Kyvelos v Champion Socks Pty Ltd, (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[51] [2015] FWC 8885, [29].
[52] PR768492.
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