Eduardo Checchia Stolzenberg v Hellenic Club Ltd
[2024] FWC 1603
•19 JUNE 2024
| [2024] FWC 1603 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Eduardo Checchia Stolzenberg
v
Hellenic Club Ltd
(C2024/278)
| DEPUTY PRESIDENT EASTON | SYDNEY, 19 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application made almost 4 years late – exceptional circumstances – mental health – capacity to participate in litigation – no exceptional circumstances – application dismissed.
On 16 January 2024 Mr Eduardo Checchia Stolzenberg made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr Stolzenberg claims that he was dismissed from his employment with the Hellenic Club Ltd and that the dismissal contravened the general protection provisions of the Act.
Mr Stolzenberg worked for the Hellenic Club in the Alpha Restaurant for five months. Mr Stolzenberg said that he commenced employment on 4 September 2019 and was dismissed on 4 February 2020. Mr Stolzenberg’s claim was filed almost 4 years out of time.
Extension of Time - Consideration
An application to the Commission to deal with a dismissal dispute involving an alleged contravention of the general protection provisions must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (per s.366(1)). The Commission may only allow a further period if it is satisfied that there are exceptional circumstances. Section 366(2) is in the following terms:
“366 Time for application
…
(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.”
Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Section 394(3) and 366(2) are in almost identical terms. Section 394(3) contains one additional factor that is not included in s.366(2): “whether the person first became aware of the dismissal after it had taken effect”. The Commission's approach to s.366(2) and s.394(3) are substantially the same.
The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as 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.
…
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
The factors listed in s.366(2) and s.394(3), considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional (per Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, (2018) 273 IR 156 (“Stogiannidis”)).
Reason for the delay
I am required to take into account “the reason for the delay”. The test invariably applied is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: firstly it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.
Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay (per Stogiannidis at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36] (Yarra Trams)). That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
A good, credible or even reasonable explanation for the delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay are not granted an extension of time because they cannot firstly establish that there are exceptional circumstances.
The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after the time limit has expired (see Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [31].
Mr Stolzenberg was dismissed in February 2020. Shortly after he was dismissed Mr Stolzenberg filed a workers compensation claim. Mr Stolzenberg claimed that he was injured at work because of bullying by co-workers.
It appears that the respondent’s insurer accepted liability for a period and then declined Mr Stolzenberg’s claim. It also appears that Mr Stolzenberg appealed the decision to decline his claim and was successful on appeal. Importantly, Mr Stolzenberg was legally represented in the workers compensation proceedings.
Mr Stolzenberg submitted that his claim was lodged out of time because he had been battling anxiety and depression since his dismissal. He said that he did not have the mental capacity to pursue two claims in litigation at the same time. That is, during the period that he actively contested his workers compensation claim he was not able to also pursue a second, parallel, general protections claim.
Mr Stolzenberg’s submissions about his mental state over the previous four years included the following:
“I have been in a yoyo effect my condition gets a little better then it gets worse, first my Dr wanted me to stay in the hospital and I refused, I have been struggling a lot and I am on medication, the medication start working I start to get better then something happens and I get worse , the first 6 months were really hard then when it started to get better I had to deal with something that puts me down again, I have [psychiatrist] letters until November 2021 where you can read that police were really sent to my house, I am not making this up. In March 2022 and September 2022 I have had my WPI assessments, which means that my last psychiatric assessment was in September 2022. I have been seeing a GP for medication, I have changed the medication but I can’t stop taking it. I have had a hearing in the beginning of 2023 then a hearing in July 2023 (when the company accepted liability) then I had an other WPI in October 2021, in November I filed an appeal but I am not a lawyer so its been really stressful , 22/12/2023 the Icare filed an opposition and then in January 2024 I filed the adverse action claim. It is very stressful . I know how bad it can get so I could not file the adverse action claim while having to deal with the workers compensation claim , I cannot afford the risk to get really bad again! Now I am dealing with 2 lawsuits at the same time , I have to deal with the FWC and the PIC but I am just waiting on the PIC , again I am not a lawyer I don’t know what happens next.
I am not self assessing, there are 4 psychiatric assessments available done by professionals, its not my self assessment. I can fill a form but I cannot deal with lawyers and hearings, its really stressful. Since I lodge this I cannot sleep properly , just to know that I have a hearing date coming up. I wish I could be excuse from attending. Why would I just wait if I wanted to file this claim since day 1 as it says in the email sent to the company .”
The psychiatrist reports to which Mr Stolzenberg refers do not completely assist his claim for an extension of time. For example a brief report from his treating psychiatrist dated 1 May 2020 includes the following:
“… Now that the [workers compensation] claim has been declined, he said he is feeling better. He has hired a lawyer and said that his lawyer is in the process of challenging the claim. He said he still has anxiety and depression, however he has now decided to “move on”. Eduardo says that he does not want to work in the hospitality [industry] anymore. He has a business of repairing car wheels and is now focused on it.”
Similarly, a report from the psychiatrist dated 10 July 2020 included the following:
“… Regarding his mood and anxiety symptoms, Eduardo said he feels his mood is better, though the anxiety is still ongoing. He said he has had panic attacks, which have no apparent triggers. He said he is working in his own business, though he works sporadically and is now on Centrelink. Overall, he said he feels better, though he still has some anxiety. His sleep and appetite are fair. He denies any thoughts, plans or intentions of self-harm or suicide. There are no psychotic symptoms.”
In March 2021 the psychiatrist reported that “in my opinion his mental state is currently stable and has no acute symptoms.”
Mr Stolzenberg stopped taking his medication in August 2021 and he was not well in October 2021. In October 2021 the treating psychiatrist arranged for police to conduct a welfare check on Mr Stolzenberg.
Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances. Generally the following principles apply:
stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit;
the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame; and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
(see Mamo v ICLED Australia Pty Limited T/A Signs National Group[2021] FWC 3903 at [20]–[25] and the cases cited therein).
Clearly for a large portion of the delay Mr Stolzenberg had capacity to make decisions about and pursue his legal rights. During this time Mr Stolzenberg was legally represented. His claim that he did not have the mental capacity to participate in the second and parallel litigation is nuanced.
It does not seem controversial that Mr Stolzenberg suffered from depression and anxiety, and that his condition affected him more at different times over the 4 year period since his dismissal.
Unsurprisingly Mr Stolzenberg’s medical evidence does not suggest that he was unable to participate in any litigation - Mr Stolzenberg contested his workers compensation claim over a long period of time.
Mr Stolzenberg has provided medical certificates indicating that he was prescribed different medications since his dismissal. The medical certificates do not directly address Mr Stolzenberg’s mental capacity, nor do they address the question of whether any condition prevented him from taking immediate steps to pursue a second legal claim.
The most recent medical certificate is dated 26 November 2021, being approximately 2 and a half years prior to lodging the Application.
In these circumstances there simply is not sufficient evidence to support a finding that Mr Stolzenberg’s mental illness had such an impact on his mental capacity that it prevented him from lodging his general protections claim for the whole of the period since his dismissal.
In taking into account all of the above, Mr Stolzenberg’s explanation for the delay does not point towards the existence of exceptional circumstances. More so, even if I were to find that there were exceptional circumstances, Mr Stolzenberg’s explanation for the delay does not support the granting of an extension of time.
Action taken to dispute the dismissal
I am required to take into account “any action taken by the person to dispute the dismissal” (s.366(2)(b)).
Shortly after the dismissal Mr Stolzenberg sent two emails to the Hellenic Club. One email provided a detailed complaint about his treatment by co-workers. The second email included the following:
“Please be advised that I will be seeking legal action against Alpha restaurant for Adverse action/retaliation and negligence when acting on a bullying complaint and also lodging a complaint at Fair work ombudsman.”
Mr Stolzenberg does not appear to have taken any other steps to directly dispute his dismissal over the next 4 years.
This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.
Prejudice to the employer
I must consider the “prejudice to the employer including prejudice caused by the delay (s.366(2)(c)).
Unsurprisingly the Hellenic Club has submitted that it’s capacity to defend the application has been substantially prejudiced by the 4 year delay.
The Hellenic Club no longer employs any of the relevant personnel involved in Mr Stolzenberg’s dismissal. By this fact alone the Hellenic Club is significantly prejudiced in its capacity to defend Mr Stolzenberg’s claim.
Mr Stolzenberg relied upon documents related to his workers compensation claim, particularly witness statements prepared by former co-workers. Mr Stolzenberg submitted that the prejudice to the Hellenic Club was significantly reduced by the fact that many potential witnesses have already prepared statements at a time when the events surrounding the dismissal were still fresh in their minds.
I accept to some degree that the evidence of some witnesses would be assisted by the statements prepared in 2020. However it is inescapable that recollections of the details of relevant events, and the recollection of matters outside of the scope of the statements made, have been significantly compromised by the effluxion of time.
In general protection claims there is a rebuttable presumption (see s.361) which elevates the significance of the employer’s evidence in the contested proceedings. The delay in filing the general protections application is substantial, such that the prejudice to the employer caused by the delay is significant.
This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.
Merits of the application
Section 366(2)(d) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.
Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice (see Yarra Trams at [72]). The Commission must be even more cautious when considering the merits of a general protections application because the Commission’s role in such applications ordinarily only extends to conciliation.
Mr Stolzenberg claimed that he was bullied at work and then dismissed because he complained about bullying. The Hellenic Club submitted that Mr Stolzenberg was dismissed as the result of a reduction in available work, because the space in which the Alpha restaurant operated was reduced due to renovations.
In context it is sufficient that the application is not without merit (Thomas Cosgrove v Clarity Interiors[2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168). The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application (see Yarra Trams at [71]).
Fairness as between the person and other persons in a similar position
Finally I must take into account “fairness as between the person and other persons in a similar position” (s.366(2)(e)). This statutory consideration seems to have been derived from a series of cases in the Federal Court and the former Industrial Relations Court of Australia (see Lucic v Nolan [1982] FCA 217, (1982) 45 ALR 411 at 416; Wedesweiller and others v Cole and others [1983] FCA 94, (1983) 47 ALR 528 at 531; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, (1984) 3 FCR 344 at 349; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300 and Wilson v Woolworths [2010] FWA 2480 at [25]-[29]).
In certain circumstances there may be people in a “similar position” to Mr Stolzenberg, such as other employees dismissed by the same employer at the same time. Under s.366(2)(e) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of Mr Stolzenberg’s claim compared to the claims of others in a similar position.
I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Stolzenberg and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
The mandatory factors collectively
As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time, and individual factors might not be particularly significant when viewed in isolation. But I must also consider the matters collectively and ask whether they disclose exceptional circumstances (Stogiannidis at [38]-[39]).
In this case none of the above matters considered individually point towards there being any exceptional circumstances. After reviewing the matters collectively I am still not satisfied that there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by Mr Stolzenberg, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, the general protection application must be dismissed.
I have separately made an order to this effect (PR776202).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR776201>
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