Dragoljub Krnjeta v Australian Postal Corporation T/A Australia Post

[2016] FWC 8815

[2016] FWC 8815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dragoljub Krnjeta
v
Australian Postal Corporation T/A Australia Post
(U2016/8293)

COMMISSIONER GREGORY MELBOURNE, 7 DECEMBER 2016

Application for relief from unfair dismissal - jurisdictional objection - extension of time.

Introduction

[1] Mr Dragoljub Krnjeta has been employed as a Mail Officer by the Australian Postal Corporation T/A Australia Post (“Australia Post”) since November 1999. However, various medical conditions that have affected him in more recent times have meant he was last at work in February 2008, more than 8 years ago.

[2] His employment was finally terminated by Australia Post on 21 April 2016 on grounds of medical incapacity. On 8 July 2016 Mr Krnjeta lodged an unfair dismissal application. Australia Post has since raised a jurisdictional objection to the application and submits it was not made within the 21 day time period provided for in the Fair Work Act 2009 (Cth) (“the Act”). This decision deals with that jurisdictional objection.

[3] Mr Don Dwyer from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) appeared on behalf of Mr Krnjeta. Ms Lucy Tehan, together with Ms Lucy Aird, appeared on behalf of Australia Post.

The Issue to be Determined

[4] Section 394(3) of the Fair Work Act 2009 (Cth) (“the Act”) gives the Commission a discretion to extend the time for making an unfair dismissal application if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account the following considerations:

“(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.”

[5] As indicated, Australia Post submits Mr Krnjeta’s unfair dismissal application was filed after the expiry of the standard 21 day time period. However, he submits this occurred because he believed his termination took effect from 27 June 2016, and not 21 April 2016. He now seeks additional time in which to make application. Therefore, the Commission is first required to determine what the date of his termination was. If it finds the date was 21 April 2016 then it is also required to consider whether “exceptional circumstances” exist, having regard to s.394(3), to warrant an exercise of the Fair Work Commission’s (“the Commission”) discretion to grant Mr Krnjeta additional time in which to make application?

The Evidence and Submissions of Australia Post

[6] Australia Post confirmed that Mr Krnjeta commenced employment in November 1999 and worked as a Mail Officer. However, in more recent times he has been off work on continuous sick leave from 18 February 2008 until his termination on 21 April 2016, when he was medically retired on grounds of incapacity.

[7] He then appealed this decision through an internal Board of Reference process. However, the appeal was dismissed in a decision handed down on 23 June 2016. Mr Krnjeta then lodged an unfair dismissal application with the Commission on 8 July 2016. Australia Post submits this application was made 57 days after the 21 day statutory time limit, and 78 days after the date of his termination, which it submits is 21 April 2016.

[8] It continues to submit the application has been lodged out of time, and there are no “exceptional circumstances” to warrant an extension of time being granted. Its submissions continue to deal with each of the matters in s.394(3).

(a) The reason for the delay

[9] Australia Post notes that the application indicates it was made within the 21 day period, and Mr Krnjeta states he was notified of his termination on 23 June 2016 and it took effect 4 days later. However, it submits this view is incorrect and not supported by the available evidence. It also submits there are no acceptable reasons for the delay in lodging.

[10] It submits Mr Krnjeta was formally advised of the termination of his employment in a letter dated 7 April 2016 headed “Notification of Retirement on the Medical Grounds of Incapacity.” The letter specifically informed him about the internal Board of Reference review process and also indicated, “If you wish to consider your rights in respect to alternative legal remedies, including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.” 1

[11] Mr Krnjeta did seek to review the decision through the Board of Reference process, but his appeal was rejected. Australia Post submits, “The BOR process has no bearing on the statutory time limits that apply under the FW Act. The mere fact that the termination of the Applicant’s employment was the subject of an internal review is not of itself an acceptable reason for a delay.” 2 It also submits there is nothing which prevents an Applicant from filing an application in the Commission and, at the same time, pursuing the Board of Reference review.

[12] It also relies on the decision in Smart v Australia Postal Corporation [2008] AIRCFB 124 (“Smart”). It submits it is authority for the proposition that when an employee has been put on notice about relevant time limits, but then fails to seek advice about making application within this timeframe, this must weigh against any conclusion that there is an acceptable reason for the delay. It also relies on the decision in Buellsbach v Australian Postal Corporation [2015] FWC 3848, (“Buellsbach”) and submits that waiting for the outcome of an internal appeal process does not provide an excuse for not lodging an application to the Commission within time, particularly when the employee has been put on notice about the need to seek advice about appropriate legal remedies and the time limits that might apply.

[13] In its submission the existence of the internal review process involving the Board of Reference did not, of itself, act to change the original date of termination of Mr Krenjeta’s employment, which was made clear to him in the letter dated 7 April 2016.

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

[14] Australia Post notes that the application states Mr Krnjeta was notified of his dismissal on 23 June 2016, however, it submits there can be no doubt he was made aware his termination took effect on 21 April 2016 and it refers, in particular, to the notification letter provided to him on 7 April 2016.

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

[15] Australia Post does not dispute that Mr Krnjeta sought to contest the decision to dismiss him by seeking an internal Board of Reference review, and when that appeal was dismissed he made a further application to the Fair Work Commission.

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

[16] Australia Post submits it will be prejudiced if an extension of time is granted because “it will be subjected to a second process of analysis and scrutiny in respect of its decision to terminate the Applicant’s employment.” 3 It also submits it has already dealt with the matter in accordance with its well established medical retirement policies and procedures, and it will be significantly prejudiced if it is again put to the time and cost involved in further scrutiny of its decision if an extension of time is granted.

(e) The merits of the application

[17] Australia Post submits that in dealing with this jurisdictional objection the Commission is not required to carry out a detailed analysis of the merits of the substantive application. However, on the basis of the material before the Commission, and the decision of the Board of Reference, it submits the application is without merit.

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

[18] It also submits it would be unfair to other Applicants, who are required to comply with the prescribed time limits, if an extension of time is granted to Mr Krenjeta.

[19] Mr Sokratis Kokonis said he gave delegate approval to medically retire Mr Krnjeta with effect from 21 April 2016 after reviewing all the available evidence. He also attended the Board of Reference hearing dealing with the appeal from that decision.

[20] He referred to the evidence of Mr Krnjeta in his witness statement when he states that he was told during the Board of Reference hearing by Mr Allison that he was still employed. Mr Kokonis denies this occurred and has no recollection of Mr Allison telling Mr Krenjeta he was still employed. He also said there was no discussion during the hearing about whether or not Mr Krnjeta was still employed.

[21] Mr Scott Allison is the Manager of the Well-Being Unit of myHR at Australia Post. He said that after taking into account all the relevant medical information and medical assessments, together with the absence of any other roles that might accommodate Mr Krnjeta’s physical restrictions, he sought delegate approval to proceed with his retirement on grounds of medical incapacity. He also noted that at this point his period of sick leave was well in excess of the maximum 78 weeks permitted under the Australia Post Enterprise Agreement 2013.

[22] Delegate approval was granted and the notification letter was provided to Mr Krnjeta on 7 April advising of the decision to medically retire him with effect from 21 April 2016. Mr Krnjeta then contacted him by telephone on 14 April 2016 and said he intended to appeal through the Board of Reference process. He also asked that this hearing be postponed to allow him to obtain new medical evidence. Mr Allison said that during this discussion Mr Krnjeta became upset and angry and threatened to take the matter further, including to the Fair Work Commission. Mr Allison subsequently confirmed the details of this discussion with his colleagues. He also indicated in re-examination that he believed Mr Krnjeta became heated and angry in this discussion because he understood he had now been medically retired.

[23] Mr Allison then had a number of further discussions with Mr Krnjeta in the lead up to the Board of Reference review, and told him on “numerous times that he could pursue his rights under the Fair Work Act at any stage, and he did not have to wait until after the BOR was finalised.” 4 However, he acknowledged in cross-examination he did not mention the 21 day time limit in these discussions, and presumed Mr Krnjeta would have already obtained advice about this.

[24] Mr Allison also rejects the claims by Mr Krnjeta that he told him in the meeting on 15 April that he was still employed, and would be until the final decision of the Board of Reference was handed down. He also denies that he told Mr Krnjeta at the Board of Reference hearing on 21 June 2016 that he was still employed and does not believe this issue was raised at the time. He also confirmed in cross-examination that Mr Krnjeta did not made any reference in the Board of Reference proceedings to whether he was still employed or not. However, he was told he remained on the payroll system because the process of finalising his cessation payment was frozen pending the Board of Reference appeal. This was in accordance with the usual practice at Australia Post. He also acknowledged in cross-examination that, taken in isolation, a person continuing to receive payslips might consider they were still employed, however, this was not the case in the present circumstances given Mr Krnjeta had been told on numerous occasions why this was occurring. He also denied he told him that the process of finalising his cessation payments was frozen because of the Board of Reference appeal. He indicated instead that it was made quite clear to Mr Krnjeta that he would only be reinstated if his appeal was successful, and otherwise his termination took effect from 21 April 2016. This was confirmed in the notification letter.

The Evidence and Submissions of Mr Krnjeta

[25] Mr Krnjeta opposes the jurisdictional objection on two grounds. He submits, firstly, that the date of termination was 27 June 2016 and his application, filed on 8 July 2016, was lodged within the required 21 day time frame. However, he submits, in the alternative, that if the Commission finds the date of termination was 21 April 2016 then “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application.

[26] He relies, firstly, on the fact that fortnightly pay slips were provided to him on 20 April, 4 May, 1 June, 15 June and 29 June 2016. The pay advice dated 29 June 2016 was the final one he received and made reference to lump-sum payments for untaken leave. The pay slips also noted that his recreation leave balance was increasing each fortnight.

[27] In addition, he was not provided with a termination payment in the period April/May, but was finally given a Centrelink termination certificate dated 27 June 2016.

[28] He also submits that he was provided with verbal assurances by Mr Allison on two separate occasions that he continued to be employed after 21 April 2016. His submissions also continued to address the various matters in s.394(3).

(a) The reason for the delay

[29] Mr Krnjeta submits the termination date notified in the letter of 7 April 2016 was stayed pending the outcome of the Board of Reference hearing. This conclusion was reinforced by the payslips given to him, and by the verbal assurances from Mr Allison. This included the assurance given by Mr Allison during the Board of Reference hearing. He also submits the process of appeal or review presumes no further action will be taken until that process has been completed. This was why he did not make application to the Commission until 8 July 2016.

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

[30] The submissions relied upon by Mr Krnjeta in this context have been referred to already. He acknowledges he received the letter of 7 April 2016, but believed the decision to terminate his employment was put on hold pending the outcome of the Board of Reference review.

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

[31] As indicated, Mr Krnjeta took action to dispute his dismissal through the internal review by the Board of Reference, and by his subsequent action to lodge an unfair dismissal application with the Commission.

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

[32] Mr Krnjeta submits Australia Post will not be prejudiced if he is granted additional time in which to make application because it has already prepared submissions and evidence for the Board of Reference hearing.

(e) The merits of the application

[33] Mr Krnjeta submits he has been employed by Australia Post for more than 27 years and has not been the subject of any work performance or disciplinary issues in that time. However, Australia Post received the specialist medical assessment on 5 April 2016 and then decided, only two days later, to terminate his employment. He was not given a copy of the assessment, or provided with any opportunity to respond. He then challenged the decision through the internal Board of Reference process, but the Board did not consider three new medical assessments he had obtained. Therefore, it did not provide him with a fair hearing, and he should now be entitled to challenge the decision, and the circumstances in which it was made.

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

[34] Mr Krnjeta submits he acted on a well-founded belief that the decision had been put on hold, and this belief was fostered by Australia Post. It should not now be able to benefit from these actions.

[35] Mr Krnjeta also sought on the day of the hearing to tender two Statutory Declarations; one from his son, Mr Robert Krnjeta, and another from Ms Maria Mira Dobos. However, neither of the deponents was available for cross examination. Australia Post objected to the declarations being tendered for this reason, however, the Commission indicated it was prepared to allow them to be tendered, but would consider what weight should be attached to them, given the deponents were not available to be cross-examined.

[36] Mr Krnjeta’s evidence indicates he believes he was dismissed with effect from 27 June 2016. He confirmed he received the letter dated 7 April 2016, which indicated he would be medically retired as of 21 April 2016. The letter also indicated he could request a review of the decision, provided that request was made by 21 April 2016.

[37] He then met with Mr Allison on 15 April and signed a form stating he did not agree to be retired on medical grounds. He was then given an application form for the Board of Reference review. He also acknowledged that the letter of 7 April indicated there were other legal remedies available under the Fair Work Act, but he was told by Mr Allison that the next step was to go to the Board of Reference if he wished to have the decision reviewed. He also said Mr Allison told him he was still employed at that time, and would be until the final decision of the Board of Reference was made known.

[38] He also contacted his Union on that day and was asked to come into the office to discuss the matter. He was told to lodge an application immediately with the Board of Reference, seeking a review of the decision. He also told the Union official that he was still employed, and no mention was made about lodging an application with the Fair Work Commission.

[39] On 21 April he lodged an application for review of the decision by the Board of Reference. This was heard and determined on 21 June 2016, however, he was not successful. He said that during those proceedings he again asked Mr Allison if he was still employed and was told he was. He said everyone at the hearing heard this. He was also concerned that medical reports he obtained on 17 April and 1 June 2016 were not taken into account in the hearing.

[40] Following the Board of Reference decision he received a Centrelink employment termination certificate dated 27 June 2016. During the period from April to June he also continued to receive payslips and noted that his annual leave entitlement was increasing each time.

Consideration

[41] Australia Post has raised a jurisdictional objection to the application, namely that it was lodged outside of the 21 day time period. The principal submission put on behalf of Mr Krnjeta, in response, it is that the application was not lodged out of time because the date of his dismissal was 21 June 2016, being the date of the Board of Reference decision rejecting the appeal against his dismissal on grounds of medical incapacity.

[42] I am satisfied at the outset that this submission can be dealt with in short order. The letter given to Mr Krnjeta on 7 April 2016 makes clear he has been dismissed with effect from 21 April 2016. There is no other evidence that leads me to conclude that another date can be considered to be the actual date of termination. The reasons for coming to this conclusion are dealt with in the paragraphs that follow. It follows that I am satisfied that the date of termination was 21 April 2016 and, therefore, the application was lodged outside of the 21 day time period.

[43] However, it does not follow from this conclusion that I am rejecting the submissions and evidence relied on by Mr Krnjeta that he claims led him to believe he was still employed until the Board of Review process was completed. They are clearly relevant in considering whether “exceptional circumstances” exist to warrant an extension of time being granted to make his unfair dismissal application.

[44] In considering an application for an extension of time the Commission must have regard to each of the matters in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of its discretion to extend time. However, there is no definition of “exceptional circumstances” in the Act and, as the submissions provided on behalf of Mr Krnjeta make clear, previous decisions of the Tribunal have considered what is required to find that “exceptional circumstances” exist to justify an extension of time.

[45] The Full Bench decision in Nulty v Blue Star Group (Nulty) 5 was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. The relevant extract from the Full Bench decision in the context of the present application is set out at [13] in the following terms:

“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.” 6

[46] The decision makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They also make clear those circumstances need not be unique, unprecedented, or rare but, at the same time, they cannot be circumstances that are regularly, routinely, or normally encountered. I now turn to consider the circumstances involved in this matter, and the submissions of the parties, by reference to these authorities and the matters in s.394(3) I must have regard to.

(a) The reason for the delay

[47] This consideration clearly looms large in all the circumstances of this matter. Australia Post relies on the content of the letter provided to Mr Krnjeta on 7 April 2016 and highlights, in particular, the second last paragraph of the letter. The letter states as follows:

“NOTIFICATION OF RETIREMENT ON THE MEDICAL GROUNDS OF INCAPACITY”

I refer to your ongoing absence noting that you have been continuous leave since 18 February 2008, during this time suffering from a lower back injury and anxiety and depression.

I am now on receipt of the report dated 5 April 2016 from Dr Timothy Stewart and his overall recommendation is that you should be medically retired on the grounds of incapacity as he does not believe you are able to resume your nominal role of Mail Officer. I have also checked with our Recruitment Unit to ascertain as to whether any administrative type roles exist at the Mail Officer level, but they have confirmed that there is nothing available. Noting that you have now been on leave for a period over 8 years, but the maximum period permitted would normally be the and 78 weeks, as per the Australia Post Enterprise Agreement 2013, clause 21.16(b). As such, action will now proceed to medically retire you on the grounds of incapacity, with effect from 21 April 2016. The decision is made pursuant to clause 3 of the Australia Post Principal Determination.

You have a right to request a review of the decision to incapacity retire you on medical grounds by a Board of Reference Chairman, pursuant to clause 5 – Grievances of the Australia Post Principal Determination, if you consider the decision to be harsh, unreasonable, unjust or unfair. An application for review of the decision must be lodged with Mr Sokratis Kokonis, Manager myHR, GPO Box 5091, Melbourne Victoria, 3001 within 14 days of the date of this notification. Please complete and return the attached advice as instructed, indicating whether or not you agree to being incapacity retired on medical grounds.

If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.

Should you require any further information or have any enquiries concerning your retirement, entitlements or how to lodge an application for review of your incapacity retirement on medical grounds by a Board of Reference please contact Mister Scott Allison on [phone].” 7

[48] It also submits that nothing prevented Mr Krnjeta from pursuing both the Board of Reference review and an unfair dismissal application in the Commission at the same time.

[49] Australia Post also relies on the Full Bench decision in Smart. That matter involved similar, but not identical circumstances. As the decision notes the Respondent’s letter of termination also indicated that if the employee wished to consider legal remedies under the Act, and the time limits that might apply, she should seek external advice. The Full Bench initially discussed the circumstances in which an employee could expect to receive correct advice when consulting their Union about these matters. However, it relevantly concluded at [7]:

“However, in circumstances where the employee is on notice that a time limit is applicable failure to seek advice on what time limits might apply will weigh against a finding that there was an acceptable reason for the delay in lodgment. In each case, of course, all of the circumstances must be taken into account. 8

[50] Australia Post also relies on the more recent decision of Commissioner Johns in Buellsbach. That matter also involved an application for an extension of time in circumstances that are again very similar to this matter. The letter provided to the Applicant contained a paragraph in similar terms to the one given to Mr Krnjeta, and made reference to the Fair Work Act remedies, the time limits that might apply, and the need to seek external advice.

[51] Commissioner Johns noted in the decision that it was conceded by the parties that there was nothing in the Act which prevents concurrent applications being made to the Board of Reference for an internal review, and to the Commission seeking an unfair dismissal remedy. He also referred to an earlier decision in Schmidt v Australia Post, 9 which decided in favour of the employee. However, Commissioner Johns noted at [24]:

“However, there is an important point of distinction between the Schmidt case and the facts in the present matter. The letter of termination that Mr Schmidt received did not contain any statement about rights under the statutory scheme.” 10

[52] He continued to indicate, in conclusion, in dealing with “the reason for the delay:”

“[20] The factual circumstance of the applicant in the present matter is more akin to that of Ms Smart than it is to that of Mr Schmidt. Both the applicant and his representative, Mr Cook, were put on notice by the respondent that there were rights under the Fair Work Act 2009. Those rights were not exercised in accordance with the statutory time limit. Having regard to the authorities referred to above, the Commission, as presently constituted, rejects Mr Cook’s submission that there is any ambiguity or confusion caused by the existence of the respondent’s internal Board of Reference process.” 11

[53] After then giving consideration to each of the matters in s.394(3) Commissioner Johns proceeded to dismissed the application.

[54] Mr Krnjeta submits the termination date notified in the letter of 7 April 2016 was put on hold pending the outcome of the Board of Reference hearing. This view is reinforced by the fact he continued to receive payslips indicating his annual leave was continuing to accrue. His evidence also indicates he was told by Mr Allison in the discussions in April, and then again during the course of the Board of Reference proceedings, that he was still employed by Australia Post.

[55] Mr Krnjeta also provided two Statutory Declarations, both dated 29 August 2016, which were tendered on the day of the hearing, despite opposition from Australia Post. The first was provided by his son, Mr Robert Krnjeta, and the second by Ms Marija Mira Dobos. Both were brief in nature and almost identical in terms, and indicated both were present at the Board of Reference hearing on 21 June 2016, and heard Mr Krnjeta ask Mr Allison whether he was still employed by Australia Post, with the answer being in the affirmative. However, for reasons that are not entirely clear the Statutory Declarations were not submitted in accordance with the directions issued for filing and service of evidence and submissions. In addition, they were both made more than two months after the event. However, it is particularly significant that neither deponent was available to be cross-examined about their evidence. This is unfortunate as their evidence could have been of relevance. However, given the circumstances in which the declarations were provided, and the fact that the evidence of the deponents was not able to be tested, I am satisfied that little weight should be attached to them.

[56] By contrast the evidence of Mr Allison and Mr Sokratis is that at no time after 7 April 2016 did they tell Mr Krnjeta he was still employed by Australia Post. Both appeared to be credible and considered witnesses, and I have no reason to take issue with their evidence. In addition, it seems almost inconceivable that they would tell Mr Krenjeta he was still employed, given the unambiguous content of the notification letter of 7 April 2016, and all that had occurred in the period of more than eight years since he was last at work.

[57] The evidence of Mr Allison is that he also explained to Mr Krnjeta why he was continuing to receive payslips, and this was due to the internal processes within Australia Post. It was also indicated in the submissions provided by Australia Post that during the course of a period of 12 months there are a significant number of employees going through the same process of being terminated on grounds of medical incapacity, and then having that decision reviewed internally by the Board of Reference. For administrative reasons, leave continues to be accrued in such cases because it is easier to administer the system in this way, rather than re-crediting entitlements if the employee is subsequently reinstated as a consequence of the review process. Mr Allison also indicated that he explained this situation to Mr Krenjeta on more than one occasion

[58] It is accepted that at first glance this practice has the potential to cause confusion for employees in terms of whether they continue to have an on-going relationship with their employer. However, I am also satisfied that Mr Krnjeta was provided with an explanation by Mr Allison on more than one occasion about why this was occurring. I am also satisfied that it is reasonable to assume Mr Krnjeta was not completely naive in all these processes. The evidence indicates he has had a long history of disputation with Australia Post of one kind and another in the eight years since he was last at work, and he has presumably gained a deal of experience through this exposure and these processes.

[59] In conclusion, I am not satisfied that the circumstances in this matter are significantly different to warrant a departure from the approach adopted by the decision of a Full Bench of the Commission in Smart, and subsequently followed in other decisions, including that of Commissioner Johns in Buellsbach. As was the case in both decisions Mr Krnjeta was also put on notice in the letter of 7 April 2016 about the rights and entitlements he might have by way of remedy under the Act, the need to be aware of any time limits that apply, and the consequent need to seek external advice. As the decisions referred to make clear these circumstances weigh against Mr Krnjeta being granted additional time in which to make application when considering the reason for the delay.

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

[60] The submissions relied on in terms of this consideration have, in large part, been canvassed already in the paragraphs above. Australia Post submits there can be no dispute that Mr Krnjeta was aware his termination took effect on 21 April 2016, given the notification letter of 7 April 2016. However, Mr Krnjeta believes this decision was put on hold by him initiating the Board of Reference review. However, given the terms of the letter of 7 April 2016 I am satisfied that it would have been prudent, at the very least, to have also lodged an unfair dismissal application with the Commission at the same time.

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

[61] Clearly, Mr Krnjeta took action to dispute his dismissal by seeking a Board of Reference review. When that appeal was dismissed he proceeded to lodge an unfair dismissal application with the Commission within 21 days.

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

[62] I am satisfied that this consideration is not of particular significance. Australia Post submits it will have to go through a second process of analysis and scrutiny if Mr Krnjeta is allowed to pursue his unfair dismissal application. He submits, in response, that much of this preparation has already been done in anticipation of the Board of Reference review.

(e) The merits of the application

[63] In considering the respective merits of the application it is noted at the outset that previous decisions of the Tribunal have determined that the Commission is not required in proceedings of this kind to come to a concluded view about the merits of the application. For example, in the decision in Kyvelos v Champion Socks Pty Limited 12a Full Bench of the then Australian Industrial Relations Commission concluded:

“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.” 13

[64] The Full Bench continued:

“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.” 14

[65] However, Australia Post submits that on the basis of both the material now before the Commission, and the earlier decision of the Board of Reference to dismiss Mr Krnjeta’s appeal, the Commission is able to conclude that the application has little merit. It also rejects Mr Krnjeta’s submission that the decision by the Board of Reference was flawed because it did not take into account the medical assessments obtained by him after his date of termination. It submits the Board does not have to take these into account because it is only required to consider the circumstances existing at the time of termination.

[66] It also points to the fact that it is more than 8 years since Mr Krnjeta was last at work, in circumstances where the relevant provisions enable it to terminate an employee after an absence extending beyond 78 weeks.

[67] Mr Krnjeta submits, in response, that his application does have merit particularly because the more recent medical assessments have not been taken into account. He accordingly submits he was not provided with a fair hearing by the Board of Reference. He also submits that in the time he has been employed there have not been any issues raised about his work performance or behaviour.

[68] As indicated, the Commission is not required to come to a concluded view about the respective merits of the matter. However, it is noted that the Board of Reference dismissed his appeal. He has also been off work now for an extraordinary length of time. While I have much sympathy for Mr Krnjeta because of the ongoing health issues that have impacted on him, this extended period of absence of more than eight years also appears, prima facie, to potentially work against him in the context of any consideration of the respective merits of the matter.

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

[69] I am not satisfied that this is a significant consideration in this matter although, as indicated, the Commission has previously found, in circumstances not dissimilar to those involving Mr Krnjeta, that it is not appropriate for the Commission to exercise its discretion to extend time in which to make application.

Conclusion

[70] In coming to a decision in this matter I have taken into account the matters in s.394(3) of the Act that I must have regard to in considering whether to exercise the discretion to extend time for making application. I have also had regard to the authorities I consider relevant to the determination of this matter.

[71] The evidence indicates that Australia Post is often involved in situations where it is required to terminate employees on grounds of medical incapacity. The evidence also indicates that in these circumstances Australia Post has adopted a practice of informing employees that they should seek external advice if they are considering pursuing a remedy in the Fair Work Commission in response to their termination, and this extends to advice about the need to consider any time limits that might apply in making application.

[72] The authorities referred to, including the decision of a Full Bench in Smart, have clearly established that where an employee has been provided with this advice at the time of termination, then this weighs heavily against a decision to exercise the discretion to extend time in which to make application. In addition, the circumstances in this matter do not differ in any significant way to suggest that they can be distinguished from the circumstances under consideration in those decisions, including in the decision in Smart.

[73] In conclusion, after having regard to those authorities and each of the matters in s.394(3) including, in particular, the reason for the delay and the merits of the application, I am not satisfied that it is open to the Commission to conclude that “exceptional circumstances” exist to warrant an exercise of its discretion to extend time in which to make application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

D Dwyer appeared on behalf of the Applicant.

L Tehan appeared on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

September 2.

 1   Exhibit AP1, Annexure SA-6.

 2   Outline of Respondent’s Submissions, dated 26 August 2016, at [16](f).

 3 Ibid at [23].

 4 Exhibit AP1 at [33].

 5   [2011] FWAFB 975.

 6 Ibid at [13].

 7   Exhibit AP1, Annexure SA-6.

 8   [2008] AIRCFB 124 at [7].

 9   Schmidt v Australia Post (AIRC, PR915006, 6 March 2002).

 10   Buellsbach v Australian Postal Corporation T/A Australia Post [2015] FWC 3848 at [16].

 11 Ibid at [20].

 12   Kyvelos v Champion Socks Pty Limited (AIRC, Print T2421, 10 November 2000).

 13 Ibid at [14].

 14   Ibid.

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