Geoff Locke v Superior Personalised Assistance Pty Ltd
[2024] FWC 3159
•15 NOVEMBER 2024
| [2024] FWC 3159 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Geoff Locke
v
Superior Personalised Assistance Pty Ltd
(C2024/7229)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 NOVEMBER 2024 |
General protections application filed out of time – circumstances exceptional – extension of time granted.
Introduction
This decision concerns an application by Mr Geoff Locke (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute (Application) pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, Superior Personalised Assistance Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge his Application in the Commission.
I conducted a hearing, by telephone, on 14 November 2024 in relation to the Applicant’s request for an extension of time. The Applicant gave written and oral evidence in support of his application for an extension of time.[1] The Respondent adduced written and oral evidence from Ms Laura Farley,[2] Managing Director, and Ms Danni Coggan, Regional Manager.[3]
The Applicant’s dismissal from his employment with the Respondent took effect on 17 September 2024. The Application was filed in the Commission on 9 October 2024.
Section 366(1) of the Act states that an application under s 365 must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 8 October 2024. The Application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2).
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4] Exceptional circumstances may 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 can be considered exceptional.[5]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[6] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[7]
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. 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, and 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.[8]
The Applicant gave the following written explanation for his delay in lodging his Application in the Commission one day late:[9]
“In relation to late submission, I mistakenly read the highlighted section below to mean that I had 21 days after my termination to lodge an application. Unknown to me at the time, on the 8/10/24 (21 days after my termination) at 11.56 pm I received an email stating I had a partially completed form in relation to FWC. On the 9/10/24 I received an email advising me that I had submitted an application. I do not have an email link to verify the time I lodged as it was submitted via the FWC website. I believe I submitted my form before going to bed on this night, believing I had completed before the deadline.
…
The reason the application was left to the last moment to submit was due to the significant psychological injury I suffered due to firstly the physical injury I suffered at work on the 12/9/24, then a letter of suspension from my employer pending an investigation of the incident by the NDIS received on the 16/9/24, then a termination letter the following day, the 17/9/24 stating an alleged act of serious misconduct on my behalf that had taken place on the 10/9/24. There was no reason given as to what this was nor was I given a chance to respond to any such allegations. I was told by the regional manager of Superior Personalised Assistance, Dannii Coggan, that the investigation would take about a week to conclude and pending the outcome my shifts would be reinstated, however I was terminated within 24 hours. To their knowledge I was still off work on a workcover certificate.
Over the next week my mental health declined while waiting for a response from the NDIS, not knowing if my NDIS Worker accreditation had been revoked. I had an appointment with my GP the following week on the 23/9/24 and was given a workcover certificate for work related stress, anxiety and depression due to what I had been through, as well as a referral for psychology treatment. My mental health only worsened over the next fortnight, leaving me unable to sleep, unable to focus on any daily routines and unable to revisit what had happened to me without causing great anxiety and further stress. I was advised by the insurance company of the employer, DXC insurance- Icare, to lodge a claim for unfair dismissal after they accepted provisional liability for my psychological injury and then I took advice from a lawyer I knew. Upon going on your website I realised my timeframe for lodgement was nearly up and I had to confront and manage the application on my own which I found very hard to do and kept putting it aside due to my anxiety and inability to focus.
I thought I was within the timeframe of application as it states on the Fair Work website under general protections that the 21 days start from the day after termination but it seems I miscalculated this on the calendar by maybe 24 hours. I would like to be given a chance for this matter to be heard and for you to take into consideration the state of my health at the time of application…”
The Applicant gave oral evidence which included evidence to the following effect:
(a)On 12 September 2024, the Applicant was physically injured while working for the Respondent. He had an object thrown at his head by a person for whom the Respondent was providing services.
(b)On 13 September 2024, the Applicant saw his general practitioner in relation to the physical injury he sustained at work on the previous day. The Applicant’s general practitioner gave him a WorkCover medical certificate because he was not fit to work until 16 September 2024. The Applicant provided the certificate to the appropriate workers’ compensation insurer and thereby made a workers’ compensation claim. The Applicant was apprehensive about going back to work with the violent person who assaulted him on 12 September 2024. He was otherwise keen to get back to work.
(c)On 16 September 2024, the Respondent suspended the Applicant pending an investigation into an alleged recent incident. Ms Coggan informed the Applicant that the Respondent had reported the incident to the NDIS, who would conduct an investigation. The Applicant was waiting to hear from the NDIS in the period following his dismissal but the NDIS did not contact him.
(d)On 17 September 2024, the Applicant was dismissed for alleged misconduct on 10 September 2024, although Ms Farley explained in her evidence that the date of 10 September 2024 in the termination letter was incorrect and the correct date of the alleged misconduct was 12 September 2024.
(e)On either 17 or 18 September 2024, shortly after his dismissal on 17 September 2024, the Applicant spoke with a representative of the insurance company dealing with his workers’ compensation claim arising from his physical injury on 12 September 2024. The Applicant told the representative that he had been dismissed and broke down during this conversation. The representative from the insurance company told the Applicant that she believed it was illegal for the Respondent to have dismissed the Applicant while he was on workers’ compensation, and said it sounded like an unfair dismissal. The representative from the insurance company suggested that the Applicant obtain medical help and advised him to make a new workers’ compensation claim.
(f)On 23 September 2024, the Applicant saw his general practitioner, who said that he needed to see a psychologist. The general practitioner also provided the Applicant with a WorkCover medical certificate, which the Applicant provided to the workers’ compensation insurer and thereby made a workers’ compensation claim relating to the psychological injury he says he suffered on 17 September 2024.
(g)After seeing his general practitioner on 17 September 2024, the Applicant called many psychologists to attempt to obtain an appointment. Eventually he was able to obtain an appointment with a psychologist on 15 October 2024, which was the earliest available appointment.
(h)On 3 October 2024, the Applicant called and spoke with the secretary at a law firm he had used in the past. He explained that he had made a workers’ compensation claim and his employment had been terminated. The earliest that the Applicant was able to obtain an appointment with a solicitor at that firm was on 9 October 2024.
On 8 October 2024, the Applicant looked at the Commission’s website in relation to making a claim in relation to the termination of his employment. He discovered, for the first time, that there was a 21 day time limit for making a claim. He calculated the 21 day time limit to expire on 9 October 2024. This was a mistake on the Applicant’s part. The 21 day time limit in fact expired on 8 October 2024. The Applicant gave evidence, which I accept, that he was “struggling to put 2 and 2 together” at this time. I accept the Applicant’s evidence that his mental health condition at the time was a significant contributing factor in his miscalculation of the 21 day time period.
(j)Even though the Applicant believed on 8 October 2024 that he had until the following day to prepare and lodge his Application in the Commission, he thought it would be better to prepare and lodge the Application on the evening of 8 October 2024, so his wife could assist him because she was at home on that evening and would be at work on the following day. The Applicant proceeded to prepare his Application and believed that he had lodged it electronically in the Commission on the evening of 8 October 2024. At 11:02pm on 8 October 2024, the Applicant received an email from the Commission in relation to a registration process for electronic lodgement of documents in the Commission. At 11:56pm on 8 October 2024, the Applicant received another (automated) email from the Commission informing him that he had filed a partially completed application and he needed to lodge a completed application. The Applicant does not know why the Application was incomplete and cannot recall whether he saw the 11:56pm email on the night of 8 October 2024 or the morning of 9 October 2024. In any event, on 9 October 2024 the Applicant went into the saved version of his Application, completed it and lodged it electronically in the Commission. At 2:17pm on 9 October 2024, the Applicant received an email from the Commission to confirm that he had lodged his Application in the Commission.
(k)On 9 October 2024, the Applicant saw a solicitor. By this time, the Applicant had already lodged his Application in the Commission.
(l)I accept the Applicant’s evidence that his mental health plummeted very fast over the few weeks following his dismissal and continued to deteriorate after 9 October 2024. He saw a psychologist on 15 October 2024.
The Applicant’s wife provided a letter to the Commission which supports the Applicant’s contentions in relation to the serious mental health difficulties suffered by the Applicant following his dismissal.[10]
The Applicant also provided a report from his psychologist dated 1 November 2024 which states, among other things, that:[11]
“The DASS-21 assessment administered on 15/10/2024 indicates that Geoff is
experiencing “extremely severe” levels of depression, anxiety, and stress. These results
are consistent with his presentation and support the diagnosis of Adjustment Disorder
with mixed anxiety and depressed mood (DSM-5-TR) as follows:
A.Geoff has developed significant emotional and psychological distress in response to his workplace stressors, which began shortly after his dismissal…
B.Geoff’s symptoms are clinically significant…”
I do not need to include the balance of the psychologist’s report in this decision. It contains personally sensitive information in relation to the Applicant.
The Respondent submits that the psychologist’s report is not sufficient evidence as to the Applicant’s medical capacity during the 21 day period after his dismissal because the report is dated 1 November 2024 and states that the assessment administered on the Applicant by the psychologist took place on 15 October 2024, which was after the 21 day period expired and after the Applicant filed his Application on 9 October 2024. The Respondent further contends that in light of the Applicant’s evidence that his mental health further declined after 9 October 2024 and he was not assessed until 15 October 2024, it follows that the Applicant’s mental health could have been in a worse state when he was examined on 15 October 2024 compared with during the 21 day period following his dismissal.
It is correct that the psychologist did not see the Applicant until 15 October 2024, which was six days after he lodged his Application in the Commission on 9 October 2024. It is also correct that the Applicant’s mental health further deteriorated after 9 October 2024. Notwithstanding these matters, the Applicant’s psychologist provided a report, dated 1 November 2024, which provides a detailed account of her assessment of the Applicant’s mental health and its impact on him. The report states that the Applicant was, at the time of the assessment on 15 October 2024, experiencing “extremely severe levels of depression, anxiety, and stress”. The report also states that the Applicant’s “significant emotional and psychological distress … began shortly after his dismissal”. In light of this evidence and the fact that the psychologist assessed the Applicant only six days after he lodged his Application in the Commission, I am satisfied that the psychologist was able to provide probative evidence in her report as to the Applicant’s mental health condition, and its impact on him, in the period between his dismissal on 17 September 2024 and the lodging of his Application on 9 October 2024. I am satisfied that the psychologist’s report supports the Applicant’s contention that he was suffering from significant mental health difficulties in the period after his dismissal and these difficulties contributed to his one day delay in lodging his Application in the Commission.
The Respondent submits that the Applicant had the mental capacity to lodge his Application in the Commission within 21 days of his dismissal. In support of this contention, the Respondent points to the following matters:
(a)The Applicant made a workers’ compensation claim on 13 September 2024. While this occurred prior to his dismissal, the Respondent contends it is relevant to the Application because the Applicant claims this forms part of the psychological injury he suffered.
(b)The Applicant made a further workers’ compensation claim on 23 September, claiming that he suffered a psychological injury on 17 September 2024. The claim covers the same issues as the Application and therefore, so the Respondent contends, demonstrates the Applicant’s mental capacity to file the Application within 21 days of his dismissal.
(c)The Applicant was advised by the workers’ compensation insurer to file an unfair dismissal application. He also later took legal advice from a solicitor.
(d)The Applicant was able to prepare the Application on his own once he realised, on 8 October 2024, that the 21 day time limit was soon to expire.
The first point to make in response to these submissions is that the factor which must be taken into account under paragraph 394(3)(a) of the Act, as part of an overall assessment as to whether there are exceptional circumstances, is ‘the reason for the delay’, not whether the Applicant had the capacity to lodge an application in the Commission within 21 days of their dismissal. In a very rare case where an applicant has no physical or mental capacity to lodge an application within 21 days of their dismissal, that would no doubt provide a good reason for the delay. However, a physical or mental health condition may impair, or make more difficult, the preparation and lodgement of an application within 21 days of an employee’s dismissal. In such cases, the decision maker will need to take into account all the circumstances to make an evaluative assessment as to whether the reasons for delay were acceptable or reasonable. If they were, this would weigh in support of a finding of exceptional circumstances.
In the present case, the Applicant made workers’ compensation claims on 13 and 23 September 2024. However, the Applicant explained that the process for making these claims was to provide the workers’ compensation insurer with the WorkCover medical certificate he received from his general practitioner. It follows that this is a much more straightforward process than preparing a general protections application. Further, although the Applicant had the mental capacity to prepare his Application on 8 October 2024, it is clear on the evidence that the Applicant’s significant mental health difficulties at the time made the preparation of the Application a difficult task for the Applicant. In particular, I accept the Applicant’s evidence that his “mental health only worsened over the next fortnight [after 23 September 2024], leaving me unable to sleep, unable to focus on any daily routines and unable to revisit what had happened to me without causing great anxiety and further stress… I had to confront and manage the application on my own which I found very hard to do and kept putting it aside due to my anxiety and inability to focus”. In addition, the Applicant thought he had filed a completed Application on the evening of 8 October 2024, only to later find out that his Application was partially completed and he had to finish it the next day. I accept the Applicant’s evidence that his mental health difficulties were a significant contributing factor to his inability to lodge a completed Application on the evening of 8 October 2024 and his miscalculation of the 21 day timeframe.
I consider that the Applicant has an acceptable and reasonable explanation for the one day delay in lodging his Application in the Commission. He was suffering from significant mental health difficulties in the period from his dismissal until his filing of the Application on 9 October 2024. For the reasons explained above, I am satisfied that these difficulties contributed in a significant way to his one day delay in lodging his Application in the Commission.
The reason for delay weighs in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
There is no suggestion in the material before the Commission that the Applicant took any step to dispute his dismissal other than filing his Application in the Commission. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant contends that he was injured in a workplace accident on 12 September 2024, was treated by a doctor that day, and was put off work on a WorkCover certificate until 16 September 2024. On 16 September 2024, the Respondent suspended the Applicant pending an investigation into an alleged incident about a week before. On 17 September 2024, the Applicant was dismissed for alleged misconduct on 12 September 2024. The Applicant denies that he engaged in any misconduct and contends that he was dismissed, in contravention of s 352 of the Act, because he was temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
The Respondent denies that it has contravened the general protections provisions of the Act. The letter of termination provided to the Applicant states that “we are not in a position to
offer you any further work on a casual basis due to your recent misconduct on 10/09/2024, where you were engaged in inappropriate behaviour”.
The facts, circumstances and reasons for the Respondent’s decision to terminate the Applicant’s employment would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Application. Having regard to all the circumstances, I consider the merits of the Application to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all the matters raised by the parties, I am satisfied that there are exceptional circumstances in this case and it is appropriate, for the same reasons, to exercise my discretion to extend time for the Application to be lodged in the Commission. The circumstances of this case are out of the ordinary course and unusual. Although many employees feel stressed and distressed as a result of, and following, their dismissal, it is out of the ordinary course and unusual for an employee such as the Applicant to experience severe levels of depression, anxiety, and stress and be diagnosed with adjustment disorder with mixed anxiety and depressed mood, which impacts on their ability to be able to lodge an application in the Commission within 21 days of their dismissal.
For the reasons given, I will extend the time for the Applicant to lodge his Application to 9 October 2024. An order will be issued to that effect [PR781300].
The Application is listed for conciliation, by telephone, before Deputy President Saunders at 3pm on 22 November 2024.
DEPUTY PRESIDENT
Appearances:
Mr G. Locke appeared for himself
Mr D. Corkett, solicitor, appeared for the Respondent
Hearing details:
2024.
Newcastle (by telephone):
14 November.
[1] Ex A1
[2] Ex R1
[3] Ex R2
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[5] Ibid.
[6] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[9] Ex A1
[10] Ex A2
[11] Ex A3
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