Jason Joy v Mercy Community
[2024] FWC 726
•20 MARCH 2024
[2024] FWC 726
The attached document replaces the document previously issued with the above code on 20 March 2024.
Minor Typographical error in [33].
Alana Spensley-Armstrong
Associate to Commissioner Ryan
Dated 25 March 2024
| [2024] FWC 726 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Joy
v
Mercy Community
(U2024/1521)
| COMMISSIONER P RYAN | SYDNEY, 20 MARCH 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Jason Joy (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) made on 13 February 2024 (Application).
In the Application, the Applicant states that his employment with Mercy Community Services SEQ Limited (Respondent) commenced on 6 September 2021 and was terminated with effect from 12 January 2024.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). If the Applicant’s dismissal took effect from 12 January 2024, the Application is 11 days outside the 21-day period. The Applicant asks the Fair Work Commission (Commission) to allow a further period for the Application to be made under s.394(3).
Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 15 February 2024 advising that the Application appeared to have been made out of time and inviting the Applicant to provide any preliminary submissions. On 19 February 2024, the Applicant filed a preliminary submission setting out an explanation for the delay in making the Application.
Following the allocation of the matter to my chambers, and in accordance with directions issued by me, both parties were provided with an opportunity to file further materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard as a determinative conference before me on 18 March 2024. The Applicant was self-represented. The Respondent was represented by its Senior IR/ER Advisor, Ms Rachael Murdoch.
The Applicant gave evidence during the conference, and the following documents were admitted into evidence:
· Applicant’s preliminary submission to the Chambers of Vice President Catanzariti dated 19 February 2024 (Exhibit 1); and
· Applicant’s Medical Certificate dated 8 March 2024 (Exhibit 2).
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Relevant Background
On or about 28 July 2023, the Applicant commenced a period of paid personal leave in relation to what he stated was a workplace psychological injury.
On 4 August 2023, and after exhausting his entitlement to paid personal leave, the Applicant commenced a period of unpaid personal leave.
On 20 December 2023, WorkCover Queensland denied a claim made by the Applicant for workers compensation.
On 27 December 2023, the Respondent issued a show cause letter to the Applicant stating, inter alia:
Please be advised that this matter is strictly confidential, and you are not to discuss it with any party associated with Mercy Community, aside from Ms Natasha Shaw, Regional Manager, and me. If you are found to have breached confidentiality, this may result in disciplinary action being taken against you.
On 2 January 2024, the Applicant responded to the show cause letter.
On 3 January 2024, the Applicant lodged an application to the Workers’ Compensation Regulator Review Unit for a review of the decision of WorkCover Queensland to deny his workers compensation application.
On 12 January 2024, the Respondent terminated the Applicant’s employment. The letter of termination stated, inter alia:
At this time, I wish to reiterate the terms and conditions outlined in your contract of employment, specifically having regard to confidentiality which continues beyond cessation of employment.
On 9 February 2024, the Applicant lodged a further application for workers’ compensation with WorkCover Queensland.
On 13 February 2024, the Applicant made the Application.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) 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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[3]
I now consider these matters in the context of the application.
Reason for the delay
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 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 an applicant’s favour, however all of the circumstances must be considered.[4]
The Applicant relies on two reasons for the delay:
(i)Medical incapacity;
(ii)Lack of knowledge of unfair dismissal laws and the applicable time limit for making an application.
Medical Incapacity
In the Application and preliminary submission, the Applicant stated that he commenced a period of leave for a workplace psychological injury on 28 July 2023, that his dismissal exacerbated that injury, and that it took him “this amount of time” to process what occurred, seek assistance, and make the Application.
The Applicant stated that both the show cause letter and the letter of termination contained confidentiality directions which left him shocked, anxious, confused, and unsure of what to do following his dismissal.
The Applicant stated that he was not aware of unfair dismissal laws, or the applicable time limits, until “a number of weeks” after his dismissal when he spoke to a friend who recommended he make an application for an unfair dismissal remedy. The Applicant made the Application 24 hours later.
In support of medical incapacity as the reason for delay, the Applicant relies on a medical certificate dated 8 March 2024 which states:
[The Applicant] has work related events leading to mental health issues. [The Applicant’s] submission to [the Commission] was delayed in the process of him managing his mental health.
In Victor Blanco v White Bathroom,[5] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).[Footnotes omitted]
More recently in Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd[6], a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:
“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
Having regard to the evidence and submissions before me, I am not satisfied that the medical incapacity is an acceptable or reasonable explanation in this matter for the following three reasons.
First, there is no ‘compelling’ medical evidence that the Applicant’s medical condition had a material impact upon the Applicant’s capacity to file the Application within the statutory time limit. The medical certificate does not provide any information beyond stating the Applicant’s condition and that he is managing it. In particular, the medical certificate does not provide any insight as to the extent of any incapacity, or how it prevented the making of the Application within the 21-day period.
While the Commission is required to have regard to the medical opinion of a person’s medical practitioner, that does not require the Commission to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[7]
Second, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves,[8] and there is nothing unusual about the confidentiality directions issued by the Respondent in the show cause letter and the letter of termination.
Third, the Applicant has not satisfactorily explained how he was able to complete and lodge a workers compensation review application on 3 January 2024 and a further workers compensation application on 9 February 2024, but not make the Application until 13 February 2024. The Applicant’s only explanation that he was that he was more familiar with the workers’ compensation process.
Taking that explanation into consideration, along with the Applicant’s statement that he made the Application 24 hours after being made aware that he could so do, and in the absence of any evidence demonstrating a material improvement in his medical condition, it is my view that the real reason for the delay was the Applicant’s lack of awareness that he could make an application for an unfair dismissal remedy, rather than medical incapacity.
Lack of awareness of unfair dismissal laws
As set out above, the Applicant stated that once he became aware that an application for an unfair dismissal remedy could be made, he was able to do so within 24 hours.
It is well established that a lack of knowledge or ignorance of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[9]
I do not consider this to be an acceptable or reasonable explanation for the delay.
Reason for the delay – Conclusion
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[10]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[11]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the Application on 13 February 2024. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact and law. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[12] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
J Joy, Applicant.
R Murdoch, for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
18 March.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] [2021] FWC 4694 at [44]-[51].
[6] [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[7] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[8] Shaw v Australian and New Zealand Banking Group Limited[2015] FWCFB 287 at [14]-[15] (per Watson VP and Smith DP).
[9] Nulty at [14].
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[12] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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