George Georgiou v Transurban Ltd
[2022] FWC 1240
•23 MAY 2022
| [2022] FWC 1240 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Georgiou
v
Transurban Ltd
(U2022/1364)
| COMMISSIONER MATHESON | SYDNEY, 23 MAY 2022 |
Application for an unfair dismissal remedy – filed out of time – circumstances not exceptional – application dismissed.
Mr George Georgiou (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Transurban Ltd (Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The Hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act). A hearing was held on 11 March 2022 (Hearing).
Permission to appear
I heard from both parties on the question of representation before the Commission.
The Applicant sought to be represented by his legal counsel, Ms Ella Dalrymple. Ms Dalrymple submitted that the matter would be dealt with much more efficiently if both parties were represented and that the Applicant would be at a disadvantage without representation, given the legal expertise of the Respondent compared to the Applicant who did not have legal qualifications. The Respondent did not object to the Applicant being represented by a lawyer.
The Respondent sought to be represented by its legal counsel, Mr Nico Burmeister. The Respondent relied on s.596(2)(a) of the FW Act and submitted that the matter involves consideration of the construction of s.394 and the facts of the matter give rise to some complexity. The Respondent also submitted that, if representation was granted to the Applicant, it would be unfair for the Respondent if permission to be represented was not also granted to it. The Applicant did not object to the Respondent being represented by a lawyer.
Having considered the submissions of the Applicant and the Respondent, I determined that allowing the parties to be represented by a lawyer or paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Accordingly, at the Hearing, the Applicant was represented by Ms Dalrymple and the Respondent was represented by Mr Burmeister.
Witnesses
The Applicant filed a witness statement and gave evidence on his own behalf at the Hearing. The witness statement did not turn to the reasons for the delay in the filing of the application and rather set out matters including:
· how the Applicant came to be an employee of the Respondent;
· circumstances regarding the Applicant’s relationship with his colleague “Tony”; and
· details of events relating to the Applicant’s colleague that concerned the Applicant.
When this became apparent at the Hearing, the Respondent indicated that it was content for the content provided by the Applicant at pages 97 and 98 of the digital court book prepared by my Chambers, being a part of the Applicant’s outline of argument, to be treated as evidence. The Applicant’s representative noted that this would greatly assist the Applicant and proceeded on the basis that the submissions at pages 97 and 98, totalling 17 paragraphs, were to be treated as evidence. The Applicant adopted this as his evidence.
In this regard, and by way of summary, the Applicant’s evidence was that:
· he is the co-carer of his 15 year old son and the sole primary carer of his 91 year old frail mother who lives with him and requires constant care and supervision;
· 21 days proved to be an inadequate amount of time to lodge his application when it competed with his carer responsibilities and medical condition;
· he pushed himself as hard as he could, under the influence of depression, to submit on time and made a bona-fide attempt to submit a day earlier, but the complexity and size of the task was too much for him;
· he still thought he had submitted within the deadline;
· his application was one day late, but it sat unprocessed in a Commission email quarantine folder for 32 days until he enquired with the Commission about the status of the application. After 40 days, he was informed that his application was one day late;
· whilst all these factors on their own may not be considered exceptional for a successful extension of time, he believes that when all the factors are considered in unison, they effectively can be considered as exceptional; and
· the Respondent has similarly lodged their response one day out of time.
During cross-examination, the Respondent took the Applicant to his unfair dismissal application. The Applicant confirmed that he filled it out himself and filled it out truthfully. The Applicant confirmed that he signed the application on 29 December 2021.
During re-examination, the Applicant indicated that he signed the document on a hard copy printout and scanned the document some time on 29 December 2021 but he was not sure exactly what time. The Applicant indicated he created PDFs of the application on both 29 and 30 December 2021.
Submissions
On 23 February 2022, the Commission issued directions to the parties. Those directions relevantly included the following provisions of the FW Act:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 directions also included links to the Commission’s resources to assist the parties in addressing the considerations above.
The Applicant filed submissions in the Commission on 10 February 2022 and 2 March 2022. The Respondent filed submissions in the Commission on 9 March 2022.
When did the dismissal take effect?
It is not in dispute and I find that the Applicant was dismissed.
On 10 February 2022, the Applicant emailed the Commission and submitted that:
· his final pay was not made by the Respondent until 1 February 2022 so it can be argued that this is now the effective date of dismissal; and
· if no payment in lieu of notice was made on the day of termination, his last working day could be 8 December 2021 plus one month.
Despite this, the Applicant’s submissions also appear to acknowledge the application was made one day late and, in submissions filed on 2 March 2022 in accordance with the Commission’s directions, the Applicant identifies 8 December 2021 as the date the dismissal took effect. Similarly, at the Hearing, the Applicant submitted that he was dismissed on 8 December 2021.
The Respondent submitted that the dismissal took effect on 8 December 2021.
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[1] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[2]
On 8 December 2021, the Applicant attended an in-person meeting with the Respondent and it was during this meeting that the dismissal was communicated to him and he became aware of the dismissal. A dismissal letter dated 8 December 2021 was provided to the Applicant on that same day. The letter stated:
“Termination of employment
I refer to today’s meeting with Michal Shao – NSW ITS Operations Manager and Michael Keegan – P&C Consultant, regarding your breaches of the Transurban Code of Conduct, Equity in the Workplace Policy, and Acceptable Use of Technology Policy.
As discussed, we have taken these breaches very seriously and your responses to the matter presented to you during this formal disciplinary process have been given full consideration. As a result of this review, Transurban has decided to terminate your employment effective today, 8th December 2021. Your employment has been terminated on notice and accordingly, you will receive payment in lieu of one month notice and any accrued entitlements up to and including 8th December 2021…”
Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact.[3] Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[4]
In the circumstances of this matter, I find that the Respondent’s communication is clear, that it intended to terminate the Applicant’s employment effective 8 December 2021 and I find that there is no evidence of a contrary intention.
While there was a delay by the Respondent in the processing of the Applicant’s final pay, this does not impact the effective date of the dismissal.
Having regard to the above, I find that the dismissal took effect on 8 December 2021.
When was the application made?
It is not in dispute, and I so find, that the application was made on 30 December 2021.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed…does not include the day on which the dismissal took effect.”[5]
As I have found above, the dismissal took effect on 8 December 2021. The final day of the 21 day period was therefore 29 December 2021 and ended at midnight on that day. As I have found above, the application was made on 30 December 2021.
As the application has not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Section 394(3)
Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[8] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
“[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.”
I set out my consideration of each of the matters referred to in s.394(3) of the FW Act below.
Section 394(3)(a) – reason for the delay
On 10 February 2022, the Applicant emailed the Commission and put forward a number of reasons for the delay. On 2 March 2022, the Applicant filed submissions in accordance with the Commission’s directions and provided further reasons for the delay. The Applicant also made oral submissions during the Hearing and gave evidence on his own behalf. The Applicant submitted that, whilst the factors, on their own, may not be considered exceptional, when considered in union they can be considered as exceptional.
On 9 March 2022, the Respondent filed its submissions. The Respondent submitted that:
· The Applicant has not provided an adequate explanation for the delay.
· The Applicant concedes that he “miscalculated the lodgement date deadline” which he now realises is “flawed logic”.
· In an attempt to explain away the delay, the Applicant has also included a long list of possible explanations for the delay, or part of the delay, the majority of which were not included in his application. The Respondent submitted that none of the assertions or explanations for the delay are sufficient, alone or in combination, to satisfy the Commission that exceptional circumstances exist.
The Respondent also made oral submissions during the Hearing. The Respondent submitted that the Applicant has “cobbled together” an “exceptional number of ordinary circumstances” but no “exceptional circumstances arise either from any of those ordinary circumstances or from any combination of them”.
I have considered and summarised the Applicant’s submissions and evidence by theme, as well as the Respondent’s responses.
The miscalculation
The Applicant submitted:
· he miscalculated the lodgement date deadline as described on the Commission’s website; and
· for the benefit of those representing themselves, the Commission’s website should have provided a worked example of determining the deadline date to eliminate any ambiguity.
In this regard, and by way of summary, the Applicant’s evidence was that:
· he miscalculated the lodgement date deadline. At the time of filing his evidence, he realised he applied flawed logic, but had no reason to doubt it at the time;
· if he knew he was approaching the application being made out of time, he would have requested advice or an extension, but assumed he was still within time;
· if he could have filed earlier, he would have but needed all the time he thought he had available to him; and
· he made a bona fide attempt to lodge a credible application.
The Respondent submitted, by way of summary:
· The application was signed by the Applicant on 29 December 2021 (the last day within the statutory limit) but was not filed with the Commission until 30 December 2021. This, coupled with the Applicant’s failure to address in his application why he did not file the application before 30 December 2021, when the application was completed on 29 December 2021, leaves open a finding that the Applicant knew the deadline was 29 December 2021 but simply failed to adhere to it.
· The Applicant asserts that he tried to submit the application on time but, due to the complexity and size of the task, it was too much for him. An inference can be drawn that the Applicant knew the last day to file the application was 29 December 2021 (despite his previous submission that he miscalculated the time period) but chose not to do so. The Respondent submitted this is supported by the fact the application is dated 29 December 2021.
· The Applicant had a full 21 days from the date of his dismissal to file the application but waited to the last day of his miscalculated time period to file it. The miscalculation of time does not explain the delay.
· If it is accepted that the Applicant miscalculated the timeframe for filing the application, this mistake is not out of the ordinary, unusual, special or uncommon.
The Applicant’s medical condition
The Applicant submitted he was diagnosed by his doctor with a form of depression being adjustment disorder/anxiety and this most likely contributed to the date miscalculation and decreased his overall mental functionality. In support of this contention, the Applicant filed:
· a medical certificate dated 30 November 2021 which certified that the Applicant had a telehealth consultation with Dr Evangelos Koumoulas and indicated that, in the opinion of that doctor, the Applicant would “be unfit for his normal work/school” from 2 December 2021 to 9 December 2021;
· a referral from Dr Evangelos Koumoulas to various psychologists at Good Thinking Psychology dated 13 December 2021, which attaches a mental health assessment describing that the Applicant was notified of suspension from work on 2 November 2021, that he has been terminated and feels like he has been unfairly dismissed. The assessment states that the Applicant is experiencing stress from recent work events, sleeping difficulties, poor attention and memory, weight and appetite loss and that he is upset;
· a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas dated 17 December 2021 which provides a diagnosis of “adjustment disorder with an anxious mood”; and
· a letter from a psychologist, Peter Morcos, dated 1 March 2022, which states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy as of the 23rd of December, 2021, to address symptoms of anxiety and depression. These mental health concerns can impact concentration and motivation both of which may have contributed to the delay in completing the requested letter by the due date.”
By way of summary, the Applicant gave evidence that:
· he was diagnosed by his doctor with a form of depression (adjustment disorder/anxiety) on 16 November 2021;
· he is currently in the care of a psychologist who he was referred to by his doctor and began treatment with on 23 December 2021;
· he considered his state of mind most likely contributed to the date miscalculation and, further, has severely decreased his overall mental functionality;
· he has lost much of his drive and struggled to stay focused on any endeavour, especially the application which he considered complex;
· his sleep was severely disturbed; and
· delays in receiving his final payment aggravated his mental state and caused him to waste time chasing the payment up.
The Respondent submitted:
· The medical evidence does not support the Applicant’s submission that his medical condition contributed to the miscalculation. The mental health assessment dated 13 December 2021 lists the Applicant’s “Thinking, Perception, Cognition, Attention/ Concentration, Memory, Judgement and Insight” as all “ok”. The Respondent submitted that if the Applicant’s medical condition contributed to the miscalculation of the timeframe for the filing of the application, the Applicant would likely have been assessed as other than “ok” in relation to these indicators.
· The medical evidence submitted by the Applicant does not explain the entire period of the delay in filing the application. The medical certificate dated 30 November 2021 from Dr Evangelos Koumoulas states he is unfit for work from 2 December to 9 December 2021. This certificate accounts for only one date of the period during which the Applicant could have filed the application. The mental health assessment dated 13 December 2021 does not prescribe a period of incapacity and so does not account for any of the period of the delay.
· The Applicant’s submission that the delay in receiving his termination payment aggravated his depressive state is unsupported by medical evidence.
During the Hearing, the Respondent addressed the medical evidence provided by the Applicant in further detail, in relation to:
· a medical certificate of Dr Evangelos Koumoulas which stated that, for the period between 2 December 2021 to 9 December 2021, the Applicant was “unfit for his normal work/school”;
· a medical certificate of Dr Evangelos Koumoulas which stated that, for the period between 10 December 2021 to 18 December 2021, the Applicant was “unfit for his normal work”; and
· a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas dated 17 December 2021.
The Respondent submitted that the restrictions referred to in these documents do not render the Applicant incapable of filing an unfair dismissal application. In this regard, the Respondent referred to the decision of Deputy President Sams in Underwood v Terra Firma Pty Ltd[9] in which the Deputy President said:
“[10] After considering all the material in this matter, I am not persuaded that either of the reasons given by the applicant constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. To my mind, it is significant that the dates identified in the medical certificate between which the applicant was deemed unfit for work/study, are well after the 21day time limit by which he was required to lodge his unfair dismissal application and some two months after his dismissal. The medical certificate deems the applicant ‘unfit for work/study’. However, such a restriction does not necessarily equate to rendering the applicant incapable of lodging his unfair dismissal application or rendering him incapable of otherwise conducting day to day activities.”
The Respondent submitted that all the documents referred to above state that the Applicant is unable to work but that the Applicant does not bridge the gap between not being able to work and not being able to complete an unfair dismissal application.
The Respondent submitted that the closest the Applicant comes to bridging that gap is a letter dated 1 March 2022 from Peter Moros of Good Thinking Clinical Psychology which states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy as of the 23rd of December, 2021, to address symptoms of anxiety and depression. These mental health concerns can impact concentration and motivation both of which may have contributed to the delay in completing the requested letter by the due date.”
The Respondent submitted that this evidence, if led in support of a submission that the mental health of the Applicant caused the delay, is pure speculation due to:
· the use of the words “can impact” and “may have contributed” (Respondent’s emphasis);
· the letter appearing to suggest that the writer does not know what they were asked to opine about as evidenced by the reference to a requested “letter”. The Respondent submitted that the Applicant was not tasked with filing a letter with the Commission and as such it cannot be known what the letter was about; and
· the substance of the letter being that the mental health conditions might have some impact upon the ability to write a letter.
The Respondent submitted that this evidence does not establish that the Applicant’s medical condition had any impact upon his ability to file his application. In this regard, the Respondent referred to the appeal decision in Underwood v Terra Firma Pty Ltd[10] where the Full Bench of the Commission stated:
“[16] We consider that the Deputy President properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it 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. At best, the letter recited the Appellant’s own assessment of his inability to have lodged the application within time.”
In that case, the Full Bench referred to the Deputy President’s decision at first instance, in which the Deputy President said:[11]
“[11] I also note that Ms Cheung’s letter states that the applicant ‘indicated he was unable to lodge the application within the required timeframe’. In other words, Ms Cheung 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. I also observe that Ms Cheung stated that the applicant only began psychological consultation on 20 November 2014; some 30 days after the statutory time limit for filing his application has expired.”
The Respondent submitted that it is a positive demonstration of the illness and its impact that is required. The Respondent submitted that the evidence does not demonstrate that the illness had an impact on the Applicant’s mental health capacity that prevented him from filing his application on time.
The Respondent submitted that, in any event, even after his diagnosis, the Applicant managed to maintain a level of mental fitness that was enough to engage in various correspondence during the 21 day period and that this is established by the evidence including:
· the Applicant’s evidence that he contested the dismissal immediately afterward by articulating that it was unreasonable and unjust;
· the Applicant was able to engage in correspondence with the Respondent about his final pay between 8 December 2021 until 24 December 2021; and
· the Applicant was able to engage in correspondence with his lawyer.
The Respondent submitted that this is consistent with evidence about the Applicant’s mental health in the mental health assessment dated 13 December 2021 (five days after the dismissal) in which the mental status examination provides the following responses to various prompts:
| Appearance and General Behaviour ok | Mood (Depressed / Labile) labile |
| Thinking (Content / Rate / Disturbances) ok | Affect (Flat / Blunted) flat |
| Perception (Hallucinations etc) ok | Sleep (Initial Insomnia /Early Morning Wakening) disturbed |
| Cognition (Level of Consciousness / Delirium / Intelligence) ok | Appetite (Disturbed Eating Patterns) |
| Attention / Concentration ok | Motivation / Energy labile |
| Memory (Short & Long term) ok | Judgement (Ability to make rational decisions) ok |
| Insight ok | Anxiety Symptoms (Physical & Emotional) both |
| Orientation (Time / Place / Person) orientated | Speech (Volume / Rate/ Content) ok |
The Respondent submitted that, at the very best, as at 13 December 2021, the Applicant was having trouble sleeping and was anxious but the rest of the faculties were “ok” according to the medical practitioner. The Respondent submitted that:
· any medical condition that there was evidence of was not of a level that must inherently mean that the Applicant couldn’t complete an unfair dismissal application; and
· in any event, there is no evidence of the connection between the medical condition and the requirement to file on time as is required by Underwood v Terra Firma Pty Ltd, both at first instance and on appeal.
Complexity
The Applicant submitted it was unclear from the Commission’s website whether he should make a general protections or unfair dismissal claim.
In this regard, and by way of summary, the Applicant’s evidence was that:
· it was not clear to the Applicant from the Commission’s website whether it was more appropriate for him to follow the General Protections or the Unfair Dismissal path; and
· after much consternation, which added to further unforeseen delays, the Applicant chose to make an unfair dismissal application because the application process appeared simpler and he was running out of time.
The Respondent submitted that it is not uncommon for employees to have to choose between bringing a general protections or unfair dismissal claim, both of which must be lodged within 21 days of dismissal. The Applicant’s indecision about whether to make a general protections application or unfair dismissal application is not out of the ordinary.
The Applicant also submitted and gave evidence that:
· he never planned to file on the deadline but preparing the case proved complex and involved historical accusations. This required significant research of the Respondent’s relevant codes and policies; and
· he believed he was required to present all his arguments concisely and with documentation at the time of lodgement and ultimately consumed all the time he thought he had available to him. The Applicant supplied over 15 attachments with his application.
The Respondent submitted that:
· the Applicant was dismissed for breaching the Respondent’s policies and on account of his behaviour and not for any other reason and, as such, disputes the Applicant’s assertion that it was “complex” for him to prepare the application and/or that he was required to conduct significant research to prepare it; and
· in any event, many applicants with even the most complex dismissal cases have managed, and continue to manage, to file their applications within 21 days of dismissal.
Issues concerning the Commission
The Applicant submitted that:
· The Commission’s online lodgement system was down after Christmas, which required the Applicant to get access to a working printer and scanner to complete the application process via email. The Applicant submitted this caused further unforeseen delays at the critical deadline time.
· For unknown operational reasons on the Commission’s side, the Applicant’s “one-day-late application was held in a 32-day abeyance, and only released” when he rang the Commission on 2 February 2022 seeking a status update on his application. The Applicant submitted that this “serves to illustrate that with all good intentions from all parties, events can be commandeered by exceptional circumstances”.
· The Commission’s website now has an example as to how to calculate the last date for filing and did not at the time the Applicant was attempting to draft his application.
The Applicant also gave evidence that:
· he recalls from the Commission’s website and from a telephone conversation with the Commission in the days before he lodged that online lodgement was offline for maintenance from Christmas eve until January 2022, and that email was the only form of lodgement;
· the Form F2 application the Applicant had was in PDF form and he could not edit it so printed it, handwrote the answers and scanned it; and
· he does not have a scanner and had to reach out to a friend. This caused the Applicant further unforeseen delays approaching the critical deadline date.
The Respondent submitted, by way of summary:
· it is not aware that the Commission has an online lodgement system and is only aware of unfair dismissal applications being lodged by emailing the Commission or providing a physical copy to the registry. However, if the Commission does have an online lodgement system which was down from Christmas Eve until January 2022, as the Applicant contends, this occurred 16 days after the dismissal on 8 December 2021;
· there was no suggestion from the Applicant that the application was not available on the Commission’s website and it is not extraordinary if the version of the application on the website was not the preferred version of the Applicant;
· the Respondent understands that individuals can always access both word and PDF versions of the unfair dismissal application on the Commission’s website. The Respondent is unaware whether the Commission’s website only had a PDF version of the application form available when the Applicant sought to download a copy to prepare the application (some time on or after 24 December 2021). However, in any event, the Applicant had ample time to obtain a copy of the application form, and prepare and file his application prior to 24 December 2021; and
· given the application was completed by and dated 29 December 2021, the Applicant still had time to submit it within the 21-day timeframe after he became aware the online lodgement system was down.
The “festive season”
The Applicant submitted the 21 day timeframe is probably not sufficient considering it also covers the festive season.
The duration of the delay
The Applicant submitted:
· the application was only one day late due to an honest mistake “most likely attributed to [the Applicant’s] frail and impaired state of mind at the time”; and
· the application was “technically only half a day late”.
The Respondent submitted, by way of summary, that the Applicant did not adhere to the statutory time period and filing “only” one day late does not cure the delay.
Access to documentation
The Applicant’s evidence was that not having access to company emails and Webex conversations from the time the Applicant was suspended was frustrating to the Applicant and “significantly delayed and stymied the gathering of evidence to refute the dismissal”.
The Respondent submitted, by way of summary:
· the Applicant did not request information or documentation from the Respondent so there can be no assertion that a lack of access to the Respondent’s emails and Webex conversations delayed his ability to gather evidence for his application; and
· it is unclear what information and documentation the Applicant is referring to, how he eventually obtained it and how this contributed to the delay.
Legal representation
The Applicant submitted, by way of summary:
· On 6 December 2021, he engaged a law firm to act as his support person at an “outcome of investigation” meeting with the Respondent on 7 December 2021.
· After the Applicant was dismissed, he sought further advice from the firm but was displeased with their slow responses.
· On 24 December 2021, the law firm advised the Applicant to file his own application as they were shutting down for Christmas.
· As it was Christmas Eve, all lawyers were closed for the rest of the year and the Applicant was forced to complete the application with no legal advice.
· Had he engaged a lawyer he would have been made aware of the correct deadline and “should not be punished for going it alone”.
In closing submissions during the Hearing, the Applicant clarified that he did not submit that the withdrawal of representation by the lawyer was inappropriate and conceded that this happened five days prior to the timeframe for the making of the application. However, the Applicant submitted that this needs to be considered in the context of the Applicant’s circumstances.
The Applicant also submitted that he was suffering a medical condition and referred to Lock v General Assembly Australia T/A General Assembly[12] in which DP Gostencnik said, in relation to the consideration of fairness between the Applicant and other persons in a like position, “where a medical condition is established by evidence as having, or likely to have had, an impact on the capacity of an applicant to lodge an application within time, this has been accepted by the Commission as providing a satisfactory explanation for the delay in other cases”. The Applicant submitted it is relevant that his capacity to understand, in circumstances in which he thought he was to be provided with legal assistance in filing his application up until 24 December 2021, and thereafter realised he would have to “go it alone” so to speak, which on top of his diagnosed medical condition contributed to the flawed logic.
In this regard, and by way of summary, the Applicant’s evidence was that:
· on 6 December 2021, he approached a legal firm, Segalov-Taylor, to act as his support person at the “outcome of the investigation” meeting on 7 December 2021;
· after his termination he sought further advice from this firm, but was displeased with their general apathy and slow responses to his email questions. In particular, the Applicant’s evidence was that he had no response to three emails over 10 days between 14 and 24 December 2021;
· on 24 December 2021, the law firm advised him to file his own application as it was shutting down for Christmas; and
· as it was Christmas Eve, all lawyers were closed for the rest of the year and the Applicant was forced to complete the application himself with no legal advice at hand.
The Respondent submitted, by way of summary:
· that 24 December 2021 is 16 days after the date of the Applicant’s dismissal and it is clear from the date of the application, being 29 December 2021, that the Applicant had resolved to make an unfair dismissal claim and managed to prepare it in less than five days; and
· to the extent that the Applicant submitted that the lawyer who attended the dismissal meeting with him refused or failed to provide satisfactory services to him and that this somehow contributed to the delay, these submissions should be wholly rejected and disregarded. The Respondent submitted that the submissions on this issue are based on hearsay and the Commission does not have the benefit of hearing from the lawyer in question as to the advice actually provided.
During the Hearing, the Respondent addressed the issues the Applicant raised in relation to his lawyer. The Respondent submitted that:
· as the lawyer had not been called by the Applicant to give evidence, an inference should be drawn that anything that lawyer might have said would not have assisted his application; and
· there is a difference between representative error where the employee is blameless and a delay that involves a representative where the employee has contributed to the delay and it is the actions of the employee that are central in this regard.
During the Hearing, the Respondent also submitted that the evidence before the Commission in relation to this issue is limited. The Respondent submitted that the evidence does appear to show that emails were sent from the Applicant to the lawyer, however there is no evidence regarding what those emails are about as the emails are not included in the evidence. The Respondent submitted that, as such, the Commission should give this issue very little if any weight.
The Respondent made a similar submission in relation to the telephone calls the Applicant says he made to the lawyer. The Respondent submitted that there is evidence of a 29 minute phone call but there is no evidence as to what was said in that phone call.
The Respondent also submitted that there is no evidence to support the Applicant’s submission that all lawyers shut on Christmas Eve.
Caring responsibilities
The Applicant submitted that the 21 day timeframe proved to be an inadequate amount of time to lodge a complex unfair dismissal application when it competed with the Applicant’s caring responsibilities and medical condition.
In this regard, and by way of summary, the Applicant’s evidence was that:
· he is the co-carer of his 15 year old son and the sole primary carer of his 91 year old frail mother who lives with him and requires constant care and supervision; and
· 21 days proved to be an inadequate amount of time to lodge his application when it competed with his carer responsibilities and medical condition.
The Respondent submitted, by way of summary:
· the Applicant has failed to explain how his caring responsibilities caused the delay; and
· the Applicant was able to prepare his outline of argument for his extension of time application within time and his caring responsibilities did not appear to have hindered his ability to do so.
Consideration
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 December 2021. The delay is the period commencing immediately after that time until the application was made on 30 December 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[13]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[14]
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.[15]
The FW 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 miscalculation
The Applicant’s application is signed and dated 29 December 2021 but was filed on 30 December 2021. The Applicant’s evidence is that he miscalculated the timeframe for making an application. I do not consider that this is in itself a reason that weights in favour of an extension of time.
If there was an absence of a worked example on the Commission’s website as to how to determine the deadline for filing, this is a circumstance that all applicants for unfair dismissal would have confronted and, had the Applicant needed clarification, he could have called the Commission.
The Applicant’s medical condition
The Applicant submits that he was suffering from a form of depression (adjustment disorder plus anxiety) and this most likely contributed to the date miscalculation and decreased his overall mental functionality.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[16]
However, each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[17]
Further, evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[18]
I have considered the medical evidence provided by the Applicant including:
· a medical certificate of Dr Evangelos Koumoulas which stated that, for the period between 2 December 2021 to 9 December 2021, the Applicant was “unfit for his normal work/school”;
· a medical certificate of Dr Evangelos Koumoulas which stated that, for the period between 10 December 2021 to 18 December 2021, the Applicant was “unfit for his normal work”; and
· a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas dated 17 December 2021.
These documents do not establish that the Applicant was prevented from or seriously impeded in lodging his unfair dismissal application on time.
I have also considered the letter dated 1 March 2022 from Peter Moros of Good Thinking Clinical Psychology, which states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy as of the 23rd of December, 2021, to address symptoms of anxiety and depression. These mental health concerns can impact concentration and motivation both of which may have contributed to the delay in completing the requested letter by the due date.”
I am not satisfied that this document establishes that the Applicant was prevented from or seriously impeded in lodging his unfair dismissal application on time. The practitioner refers to a “delay in completing the requested letter by the due date”. It does not refer to the delay in completing an unfair dismissal application. Even if it is inferred that this is what the practitioner meant, the practitioner uses qualifying language such as “can impact” and “may have contributed”. The practitioner does not say that it did impact or contributed to the Applicant’s ability to complete a letter or even that it was likely to have done so. The evidence also establishes that the Applicant has been able to undertake other activities in relation to the termination of his employment, in particular, corresponding with the Respondent in relation to his final pay.
While the Applicant was suffering from a medical condition and I have sympathy for his circumstances, I do not accept that this prevented him from filing his unfair dismissal application on time.
Complexity
While the Applicant submits that preparing his case proved complex and required significant research in relation to the Respondent’s codes and policies, I am not persuaded that this factor in itself contributed to the delay in making the application on time. The application form itself is not a complex document to complete. Further, the decision as to whether to make an unfair dismissal application or another form of application involving dismissal is a decision that confronts many applicants. As noted by DP Asbury in Martin v Kancee Pty Ltd T/A GT AIR,[19] with reference to the decision of the Full Bench in Arch v Insurance Australia Group Services Pty Limited,[20] even an incomplete application or an application made in the wrong form will not necessarily be invalid and such an application made within time is capable of being accepted without the need for the grant of a further period to rectify deficiencies in form or content.
Issues concerning the Commission
There is no suggestion made by the Applicant that an unfair dismissal application was not available for him to complete in some form, accessible from the Commission’s website. While the Applicant may have considered that the need to complete a PDF form was less convenient that other means of form completion, that this was not his preferred method of application completion is not an adequate explanation as to why he did not make the application on time.
Further, the Applicant’s submission that his late application was held in a 32-day abeyance, and only released when he rang the Commission on 2 February 2022 seeking a status update on the application, does not prevent the application from being made late. The processing of the application by the Commission took place after the application was filed on 30 December 2021 and this is not, therefore, a matter relevant to the extension of time application.
Further, if there was an absence of a worked example on the Commission’s website as to how to determine the deadline for filing, this is a circumstance that all applicants for unfair dismissal would have confronted. Had the Applicant needed clarification, he could have called the Commission. I am not persuaded that this factor in itself contributed to the delay in making the application on time.
The “festive season”
While the last date for filing may have fallen at an inconvenient time for the Applicant, I do not accept that this prevented him from filing his unfair dismissal application on time.
The duration of the delay
The fact that the application was filed half a day late does not cure it from being late and does not weigh in favour of a finding of exceptional circumstances. As Deputy President Gostencnik noted in Ozsoy v Monstamac Industries Pty Ltd:[21]
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
While the application was only one day late, I note that numerous decisions of the Commission have refused to allow a one-day extension in time to file an application.[22]
Access to documentation
I am not persuaded that not having access to company emails and Webex conversations from the time the Applicant was suspended resulted in a delay in submitting the application. The evidence does not establish this. There is no evidence that the Applicant sought such documentation from the Respondent. The application could have been made and the Applicant could have sought this information once the application was made, either through an application for an order for production or otherwise.
Legal representation
I am not satisfied that the evidence provided by the Applicant suggests error on the part of the Applicant’s legal representative. The emails between the Applicant and his representative have not been produced and the legal representative informed the Applicant on 24 December 2021 that he would need to make his own application, five days prior to the last day for the making of an application. The Applicant has not produced evidence that all law firms ceased operation on 24 December 2021 for the Christmas period and, even if they had, this would not have prevented the Applicant from making his own application.
Caring responsibilities
While the Applicant may have caring responsibilities, he has not provided an adequate explanation as to how his caring responsibilities caused the delay.
Conclusion
I have considered the reasons for the delay provided by the Applicant, both individually and in combination, together with the evidence turning to those reasons. I do not consider that the reasons, either individually or in combination, provide a credible explanation for the delay. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
Section 394(3)(b) – whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant first became aware of the dismissal on 8 December 2021, the date it took effect. During the Hearing, the Applicant submitted that no reliance was placed on this by the Applicant. There was no confusion or lack of clarity which could have contributed to the delay and this is a factor that weighs against the exercise of the discretion to grant a further period for the application to be made.
Section 394(3)(c) – any action taken to dispute the dismissal
The Applicant submitted that he verbally informed the Respondent, just after his dismissal, that he believed the dismissal was unreasonable and unjust and that he intended to explore his legal options. In closing submissions during the Hearing, the Applicant submitted that this was established in the evidence and that the Applicant made it clear that he disagreed with the Respondent’s decision to dismiss him. The Applicant submitted there is no evidence to dispute that.
The Respondent submitted that, other than the application, there is no relevant material before the Commission on this matter. During the Hearing, the Respondent further submitted that a protestation the day after the dismissal that it is was unfair is not enough, is not causative of any delay in the making of the application and does not support an application that exceptional circumstances exist. The Respondent noted that this is not a matter where the application was commenced in the wrong place or that the Applicant had commenced some form of negotiation with the Respondent.
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[23]
I accept that, just after the dismissal, the Applicant told the Respondent he believed the dismissal was unreasonable and unjust and that he intended to explore his legal options. However, there is no evidence that the Applicant went further than this to dispute his dismissal. In the circumstances of this matter, I consider this to be a neutral factor.
Section 394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The Applicant submitted that a delay of one date would not cause prejudice to an organisation of the Respondent’s size.
The Respondent accepted that it does not suffer any prejudice by reason of the delay, however referred to Grant v CSL Limited T/A Bio CSL[24] in its submission that absence of prejudice alone is an insufficient basis for granting an extension of time. During the Hearing, the Respondent took issue with the Applicant’s submission that the absence of prejudice weighs in favour of the granting finding of an extension of time and referred to Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 2)[25] in which Abraham J said:
“73. The contention put by the applicant is that a lack of prejudice to the employer must always favour the grant of an extension. As explained above at [35]-[36], there is no basis in the text of the provision, or authority which supports that.
74. The Full Bench considered and rejected the submission at [35]-[38]:
[35] Mr Ittyerah submits that a finding under s.394(3)(d) that there is no prejudice to the employer must always weigh in favour of the applicant for an extension of time and need not be considered a neutral factor as the Deputy President found.
[36] This issue was considered by the Full Bench in Gail Miller v DPV Health Ltd (Hume) (DVP Health) where the Full Bench made the following observations at [21]:
“[21] … However, bearing in mind that the relevant task is to consider whether the requisite exceptional circumstances exist, whether a lack of prejudice to the employer weighs in favour of such a conclusion or not will vary depending on the circumstances of the case. There is no necessary single conclusion which will apply in that respect. Where the delay involved is very short, as here, it will usually be entirely unsurprising that there is a lack of prejudice to the employer, and thus this will likely not weigh in favour of a finding of exceptional circumstances. As was stated by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd, a case likewise involving a delay of one day:
“[38] Ground 9 was an assertion that the absence of prejudice should have been found to be a positive consideration and not a neutral one. It identifies no error. The absence of a prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement.”
[22] However in other circumstances, such as where the delay is a long one and the case will require multiple witnesses to be called to resolve contested factual issues, a conclusion that the delay would not cause prejudice to the employer might well weigh in favour of a finding of exceptional circumstances. It will all depend on the facts of the case. That different conclusions on this score have been reached in different decisions is not demonstrative of any disharmony on a question of principle. No arguable case of error in respect of the Deputy President’s conclusion as to s 394(3)(d) is discernible.”
[37] Nothing put by Mr Ittyerah supports any arguable case that the Deputy President’s conclusion concerning this statutory criterion involved an error of law. To the contrary, it is consistent with the Full Bench authority in DVP Health and that of the Full Bench in Ozsoy v Monstamac Industries Pty Ltd as set out above, and we see no reason why this Full Bench would take a contrary view.
[38] Further, the guiding principles set out in Hunter Valleyrelied upon by Mr Ittyerah are not authority for the proposition that no prejudice to the employer must weigh in favour of an applicant for an unfair dismissal remedy.
75. As is plain, the authorities reflect that it is a matter of weight, which is fact specific to the particular case. The applicant’s repeated claims that authorities which are against his submission are incorrect, does not necessarily make them so. The discussion in Miller and Ozsoy accords with the ordinary and uncontroversial principle, that the weight to be given to any factor depends on the particular facts of each case: see [36] above.
76. This ground is not established.”
The delay in filing the application is a delay of one day. I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[26] I consider this a neutral factor in the context of this matter.
Section 394(3)(e) – the merits of the application
On 3 November 2021, the Applicant sent an email to a colleague who was retiring and copied his manager. This email was filed by the Applicant with his submissions and stated (images omitted):
“Dear Tony
It would be remiss of me to allow you to end your employment with Transurban on your own terms.
I will say this, with you gone, TU is in much safer hands.
Based on what I saw, you were unchallenged when it came to exposing ITS OPS to risk.
How fortuitous to be on call in parallel with you for several months. Pager Duty was your undoing. Every night, I would observe half dozen alarms acknowledged during the night with no notes. You never got out of your warm bed. Had Hammondville plaza gone down, you would still be snoring. Come morning, you resolve them all as a batch, adding “Low traffic working as expected”. Bingo! You have 2 hours TIL for 15 mins work. Even “Rear no Reads” got your “Low traffic” treatment! You even resolved some of my Region2 incidents by mistake during your haste and daze.
Further, your Daily/Weekly/Monthly checks were just a motion of ticking boxes with little snips. I observed on multiple occasions when you were On-Call, AM and PM weekend checks were performed sometimes the next day, or even early Monday morning.
You did however enter time down for performing all of them.
Photo showing no editing to Daily check sheet from Sat 4:17PM till Sun 11:01pm.
…
You displayed total ineptness to your job. You simply don’t have an engineering bone in your body.
In the 2.5 years at TU, I did not see one document, email, message from you that indicated you had some mastery of the topic at hand. Far from it, I am yet to see a document from you that was not littered with grammatical errors.
Your interaction on group webex is best described as comatose.
Through the generosity and patience of your colleagues, and especially your manager, you were supported and protected.
And how did you repay them for keeping you afloat?
By fudging and rorting your timesheets. You were always a clock-watcher, but since Covid, without fail, you would always be onsite for 30 minutes less per day than you claimed to be. It’s not even that you put in extra hours, you didn’t. Whilst everyone was working 40+ hrs per week, you were doing 35 max. Effectively, offloading work onto your colleagues. What an ungrateful man you are Tony! You have been an embarrassment to me since you started, and I reminded you of this on a couple of occasions. I won’t go into other petty personal details, suffice to say you never made any attempt to improve yourself from the Tony I had known 8 years prior.
See below “small” selection of photos showing timesheet fraud:
Claimed arrival: 8:44AM Actual arrival: 9:04AM
…
Claimed arrival: 8:22AM Actual arrival: 8:48AM
…
Claimed arrival: 8:53AM Actual arrival: 9:22AM
….
Claimed arrival: 8:37AM Actual arrival: 9:18AM
…
Claimed departure: 5:15PM Actual departure: 4:57PM
…
Claimed arrival: 8:36AM Actual arrival: 8:57AM
…
Claimed departure: 12:59PM Actual departure: 12:27PM
…
“Grab some milk on the way home will you dear”
…
And finally todays grand entrance:
Claimed arrival: 7:52AM Actual arrival: 8:11AM
…
I think I have provided you with enough photos spread over a considerable period of time to put to bed any One-Off excuses. Plenty more happy snaps available on request!
You saved your best work for tunnel night shifts. You hatched a plan where you would go home say 2:30am, then send your shift report when you get home 30 mins later followed by “AR out M2”. And you think I wasn’t on to you?
Your modis operandi has always been, from the time you start work in the morning, is to focus on finish time, and the path of least resistance to get there.
Tony, can you also explain to me how a 9am starter before Covid, becomes an 8am starter after Covid when wfh? (assuming 20 min drive). One explanation is you wound back your alarm clock 30 mins. The other is fraud.
Covid has given you opportunities which you have gladly exploited.
But the most extraordinary aspect was when I confronted you on a couple of occasions about your work ethic and your rorting of timesheet and TIL, you simply replied “I work my guts out, I’m constantly working back till 6-7pm”. Little did you know that I knew the hours you were keeping.
You had no idea the battles I fought internally when undertaking TU ethics training. Knowing a colleague was rorting his timesheet, his TIL and I did not report it. How did you feel about taking the ethics course Tony??
You don’t just owe me once when I opened TU doors for you 2.5 years ago, you owe me twice as I should have reported you 1 year ago, but allowed you collect a very good salary in the meantime. You are the most ungrateful, unethical and shameless person I have ever met.
Interestingly, something must have occurred mid-year (approx June 21) whereupon for a period of 2-3 weeks, you entered correct times. Well blow me down! I would assume someone had read out some riot act to you? However 2-3 weeks was your max limit and you returned to your corrupt ways. This behaviour confirms that you are a “conscientious” rorter, and no other excuse can cut through.
Take note Tony, although it may now be a bit late for you. If you didn’t piss people/me off, you may have possibly got away with it undetected.
You obviously haven’t read Frank Abagnale’s book have you? You taunted me, but I always knew it was just a matter of time before you were caught out and exposed.
And remember, you did all this all by yourself, to yourself!
Good riddance to bad rubbish.”
The email included various attachments, including timestamped images of the Applicant’s colleague leaving and entering the workplace as well as time and attendance records. The Applicant does not deny that the email was sent.
A Webex conversation between the Applicant and his colleague also came to the attention of the Respondent. The exchange occurred on 7 July 2021 and read as follows:
Applicant’s colleague:
“Hi George,
i didnt end up using the media converter you gave me as was 4 port i will drop it off at LCT we found a used one”
Applicant:
“I don’t know how many times I asked for it back. What is wrong with you?”
Applicant’s colleague:
“nothing we tried to use but it was too large physically
we have ordered 5 more 10 week turn around”
Applicant:
“No thanks, no apology. Typical! Don’t ever ask me for any favours. (It’s not as if you don’t owe me already)”
Applicant’s colleague:
“i did say sorry when i saw you last !!”
Applicant:
“You have a guilt complex? I’m saying sorry for not returning the server. All I can say is I’m so happy your not in my team”
Applicant’s colleague:
“where do you want it Renjith said he can leave it in the compatus at LCT”
Applicant:
“When you picked up the server at CCT and I dressed you down, you mentioned the fact that I referred to Romesh and yourself as my favourite colleagues. Yes, I said that, but it just goes to show how much you have fallen in my eyes. You are a lazy disgrace.”
Applicant’s colleague:
“You are making false accusations and your opinion is untrustworthy as you have shown”
Applicant:
“Read the room Tony. Time to retire!”
Applicant:
“Give the job to someone who is young and hungry”
On either 4 or 5 November 2021, the Applicant was suspended pending an investigation. The Applicant submits this investigation was biased.
On 10 November 2021, the Applicant attended a meeting with the Respondent as a part of this process.
A disciplinary process followed and, on 7 December 2021, the Applicant met with the Respondent.
On 7 December 2021, the Applicant wrote to the Respondent in response to allegations made in connection with conduct towards his colleague. The Applicant’s response read as follows:
“Dear Michael,
I refer to your letter to me of 4 November and the various allegations made against me in connection with my conduct towards Tony Rayment. I also refer to my meeting with you and Michael Keegan and my subsequent suspension.
You will be aware that on the 16th of November I provided Transurban with a medical certificate, which provided that I was unfit for work for the period 16/11/21 to 09/12/21.
I am now feeling a great deal better. I have been able to use the time of my illness to reflect upon what has occurred, and in particular my behavior in the last months.
I have identified that my behavior was inappropriate and did not meet my expectations for how I should conduct myself. I apologise without reservation to you, and to Transurban generally. While I retain concerns about his conduct, I also apologise to Tony Rayment for my behavior.
I provide this apology without limitation. I do, however wish to provide three points of context.
The first point is that I identify now that I have found the last period of work difficult. Working conditions during the pandemic have been isolating. I have worked, generally 9- 10 hours per day, supporting Transurban in the CCT and ED without significant coworker support for close to 2 years. I recognize now that these difficult working conditions contributed to both my behavior towards Tony Rayment and my recent illness.
The second point is that I had genuine, well-founded concerns about Tony Rayment’s actions. These concerns included that, particularly in circumstances where many of us were stretched and working excess hours, he was not working his required hours and was not being honest about that fact. I felt resentful about this, and angry when my attempts to raise System-check falsification with management appeared to be ignored. I am passionate about Transurban and was distressed at what I identified to be very poor behavior by Tony at the expense of Transurban and his colleagues. Again however, I accept that the way I then escalated the issue was inappropriate.
The third point is that this behavior was, in terms of my working life, unprecedented. I have never previously behaved as I did recently. I have never previously been the subject of a complaint or allegations of bullying. I am committed to never behaving like this again.
I understand at this morning’s meeting I may be asked for a further response in respect of the allegations. I will answer any questions asked of me frankly and honestly. I also wanted to record, before the meeting, that I accept and acknowledge that I behaved contrary to the Transurban Code of Conduct, and that my language and expression was inappropriate and offensive.
I am also aware that at some stage Transurban will assess the appropriate sanction against me. I ask that you not terminate my employment. I love my work, and am deeply committed to Transurban and my colleagues. I believe that I am generally well respected and engage well with others.
I accept that a formal warning will be appropriate, and also advise that I am willing to undertake any additional training that you think may be useful. As I indicated above, there will never be a repeat performance of this kind of behavior. I look forward to seeing you later today.
Yours Sincerely,
George Georgiou”
The Respondent made the decision to dismiss the Applicant and did so on 8 December 2021. The Respondent’s letter to the Applicant dated 8 December 2021 identified the reasons for the dismissal as being breaches of the Transurban Code of Conduct, Equity in the Workplace Policy, and Acceptable Use of Technology Policy.
By way of summary, the Applicant submitted that the dismissal was unfair for the following reasons:
· The Applicant’s actions involved reporting a colleague for fraud by way of email sent to the colleague and copying his manager. The Applicant submitted that he was suspended the next day after a biased investigation.
· During the investigation into his concerns, the Applicant supplied a Webex conversation from 18 September 2020 when the Applicant reported a colleague to his line manager for falsifying system checks. The response was “leave it with me” and the falsifications continued. The Applicant submitted that, if management had acted to stop the falsifications, he would not have had any reason to make any further fraud allegations and would most likely have remained in employment.
· The person heading up the investigation should have disqualified himself from the investigation as he had a conflict of interest because he did not stop the falsifications when the Applicant raised them over a year earlier.
· The Respondent’s ‘Code of Conduct’ required him to “report any suspicions of fraud, bribery or unethical behaviour”. Further, the Respondent’s ‘Whistleblower Policy’ characterised the Applicant’s allegations as reportable conduct.
· The Respondent’s ‘Equity in the Workplace’ policy states that an employee who raises a complaint will not be subject to any form of victimisation and, by dismissing the Applicant, the Respondent breached its own policy.
· The person against whom the Applicant made the complaint lodged a vexatious complaint of bullying and harassment against the Applicant. The Applicant submitted that a “person who engages in fraudulent behaviour in the workplace…forfeits their right to respect in the workplace”.
· The alleged breaches that led to the Applicant’s dismissal included the accessing and recording of the Respondent’s surveillance system. The Applicant submits the accessing and recording of the Respondent’s surveillance system was purely for the forwarding of information to Transurban management, not for personal reasons and formed a legitimate business purpose.
· Engineers are notorious for using colourful or crude language when communicating with each other and the Applicant is no different.
By way of summary, the Respondent submitted that the application will not succeed based on the merits because there was a valid reason for the dismissal, a procedurally fair process was followed and the Applicant was afforded a fair go all round. In particular, the Respondent submitted:
· there was a valid reason for the dismissal (s.387(a) of the FW Act) as the Applicant was dismissed for breaching the Respondent’s policies;
· the Applicant was notified of that reason (s.387(b) of the FW Act) during the in-person meeting held on 8 December 2021 and in the dismissal letter of the same date;
· the Applicant was given the opportunity to respond (s.387(c) of the FW Act) at all material points and at the disciplinary meeting on 7 December 2021; and
· the Applicant was afforded the opportunity to have a support person present at all relevant discussions relating to his termination (s.387(d) of the FW Act), an opportunity of which he availed himself.
During the Hearing, the Respondent further submitted that the merits of the matter weigh against an extension of time. The Respondent submitted that it is not the purpose of the current proceedings for the Commission to undertake a detailed assessment of the merits and that the Commission is not usually called upon during an extension of time hearing to resolve contested matters of fact. The Respondent also submitted that the matter is one in which it is plain from the documents without a need for any resolution of contested facts that the prospects of the application are low. The Respondent submitted that this is a rare case in which the “mischief” underpinning a dismissal on the grounds of misconduct has been admitted by the Applicant.
During the Hearing, the Applicant submitted that it is sufficient for an applicant to establish that the substantive application was not without merit. In this regard, the Applicant referred to Cosgrove v Clarity Interiors[27] in which a Full Bench of the Commission referred to Kornicki v Telstra-Network Technology Group[28] as follows:
“[33] In the matter of Kornicki v Telstra-Network Technology Group the 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 Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.””
During the Hearing, the Applicant submitted:
· the case raised by the Applicant is that the dismissal was harsh or unjust in the circumstances, notwithstanding a breach of the work policies;
· this requires a careful consideration of whether the reason was valid and that will require a close look at the behaviour complained of, the circumstances related to that behaviour and the wording of the policies upon which each party relies on, and proper and full consideration of those matters is beyond the scope of the Hearing;
· nevertheless, in so far as the policies are concerned, the Code of Conduct itself states that a breach may result in termination or some other form of disciplinary action. The Applicant submitted the Code of Conduct clearly contemplates that breaches occur on a spectrum of severity and it is thus open to the Applicant to make the argument and to explore that his termination was harsh or unjust in the circumstances and warranted some form of disciplinary action other than termination;
· the Acceptable Use of Technology Policy provides no guidance on what a sanction should be in the event of a breach other than to state that a failure to comply will result in disciplinary action. The Applicant submitted this could range from a warning to further training and at the most serious end dismissal; and
· the Equity Policy does not state what disciplinary action should be taken in the event of a breach but states it should be read in conjunction with the Code of Conduct. The Applicant submitted that this suggests breaches of this policy may result in a range of disciplinary action.
In terms of the policies on which the Applicant relies, the Applicant submitted that the Whistleblower Policy encourages employees to notify management of reportable conduct including dishonest activities such as fraud and that this policy provides protection for persons making disclosures.
The Applicant submitted that his case does have merit given the policies outlined and the questions to be answered at a full hearing, should the extension be granted.
While the Applicant appears to have conceded that his conduct was inappropriate, it is apparent that there are other disputed facts which could only be resolved by evidence at a hearing. In these circumstances, I have considered the merits of the application as a neutral factor in my determination of whether the discretion to grant a further period to make the application should be exercised.
Section 394(3)(f) – fairness between the Applicant and other persons in a similar position
In relation to the consideration of fairness between the Applicant and other persons concerned, the Applicant submitted that his situation is “less fair” because:
· the colleague he reported for fraud:
owas not suspended, investigated, asked to respond to the Applicant’s allegations, disciplined or dismissed;
owas allowed to make a vexatious complaint of bullying and harassment against the Applicant; and
owas allowed to supply written evidence of previous “bullying” communications which were taken out of context;
· the Applicant refuted and clarified the context during the internal investigation but the complaint was still used to dismiss him; and
· the scenario suggests discrimination against the Applicant and favouritism toward the offending colleague.
During the Hearing, the Applicant submitted that on balance the extension ought to be granted given the reasons offered by the Applicant, the short delay in filing, the conceded absence of prejudice to the Respondent and the unusual circumstances that the Applicant found himself in, keeping in mind the withdrawal of legal representation on the last day prior to the Christmas closure leaving the Applicant with little time to prepare the application himself, combined with circumstances in which the Applicant has a diagnosed medical condition that could impact his comprehension.
The Respondent submitted that the Applicant has failed to explain his delay in filing and that this will usually tell against the grant of an extension of time. The Respondent submitted, with reference to Dharan Prasad v Cordina Chicken Farms Pty Ltd,[29] that it is important that the principles governing a grant of an extension of time are applied consistently. The Respondent submitted that, as a matter of fairness between the Applicant and other people who file late and who are usually held to account for their failure to explain any part of their delay, the grant should be refused.
During the Hearing, the Applicant submitted that he was suffering a medical condition and referred to Lock v General Assembly Australia T/A General Assembly[30] (Lock) in which DP Gostencnik said, in relation to the consideration of fairness between the Applicant and other persons in a like position:
“[27] For the reasons earlier given I do not regard the Applicant to have been the author of her demise. This consideration is ultimately concerned with ensuring that consistent application of principle is achieved in determining whether an extended period of time within which to lodge an application should be allowed. But ultimately each case is to be assessed having regard to the circumstances particular to it. That said, where a medical condition is established by evidence as having, or likely to have had, an impact on the capacity of an applicant to lodge an application within time, this has been accepted by the Commission as providing a satisfactory explanation for the delay in other cases. The absence of medical evidence indicating the condition contributed to delay and assertions as to the effect of the medical condition, provided as an explanation for the delay, has resulted in that explanation not being acceptable. Given the medical evidence, a decision in this case not to grant an extension of time may well result in unfairness as between the Applicant and other persons in a like position. In these circumstances, this consideration weighs in favour of the Applicant.”
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[31] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[32]
The evidence before me is distinguishable from the evidence in Lock. In that matter, the applicant’s treating physician gave evidence in the proceedings beyond evidence of the nature that has been provided by the Applicant. In particular, the treating physician’s evidence was that, in his medical opinion, he had no doubt that the applicant’s anxiety and depression impacted her ability to make the application that she made within the time prescribed.[33] As I have found earlier, no such evidence has been provided by the Applicant in this matter. The Applicant has not taken me to any other employees in a similar position and I consider this a neutral factor. Notwithstanding this, I am satisfied that a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case and consistent with Full Bench authority in Nulty v Blue Star Group.[34]
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings and weighing each of the matters I am required to consider.
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.[35] 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.[36]
I am not satisfied that the above matters considered individually point towards there being any exceptional circumstances. Further, I am not satisfied that there are exceptional circumstances after considering the above matters collectively.
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Ms E Dalrymple on behalf of the Applicant.
Mr N Burmeister on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video Using Microsoft Teams).
March 11.
[1] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[2] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].
[3] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[4] Ibid.
[5] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s.36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s.40A.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].
[8] [2011] 203 IR 1 at [13].
[9] [2015] FWC 1387, [10]. Note this matter was appealed with a Full Bench finding in [2015] FWCFB 3435 that the Deputy President “properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate 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”, [16].
[10] [2015] FWCFB 3435, [16].
[11] [2015] FWC 1387, [11].
[12] [2015] FWC 6036, [27].
[13] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[15] Ibid.
[16] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[17] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[18] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[19] [2020] FWC 1737, [27].
[20] [2018] FWCFB 975, [39]-[41].
[21] [2014] FWC 479, [30].
[22] See for example Obel v Central Desert Regional Council[2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd[2021] FWC 530.
[23] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[24] [2015] FWC 135, [27].
[25] [2021] FCA 412, [73]-[76].
[26] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[27] [2020] FWCFB 5464, [33]
[28] Print P3168, 22 July 1997 per Ross VP (as he then was), Watson SDP and Gay C.
[29] [2019] FWC 4867, [26].
[30] [2015] FWC 6036, [27].
[31] Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963, [41].
[32] Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19]
[33] [2015] FWC 6036, [19].
[34] [2011] FWAFB 975.
[35] Ibid, [13].
[36] Ibid.
Printed by authority of the Commonwealth Government Printer
<PR741812>
3
28
0