Ji Brown v John Thompson
[2020] FWC 2280
•5 JUNE 2020
| [2020] FWC 2280 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Ji Brown
v
John Thompson
(C2020/1493)
DEPUTY PRESIDENT BOYCE | SYDNEY, 5 JUNE 2020 |
Application to deal with contraventions involving dismissal — no exceptional circumstances —request for extension of time to file application refused – application dismissed
Introduction
[1] On 10 March 2020, Mr Ji Brown (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by lodging a Form F8 through the Commission’s website (General Protections Application). The Applicant claims that his employment with Mr John Thompson t/a Thompson Brothers Automotive (Respondent) was terminated by the Respondent on 12 February 2020 in contravention of Part 3-1 of the Act.
[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow.1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect.
[3] Prima facie, the Applicant appears to have lodged his application six days outside of the statutory time limit. To be within time, the Applicant should have lodged his General Protections Application on or before 4 March 2020.
[4] On 24 April 2020, I convened a hearing (by telephone) to determine whether to allow the Applicant an additional period within which to lodge his application. Having considered the evidence and submissions of both parties, I have determined that there are no exceptional circumstances that would enliven my discretion to grant the Applicant an extension of time to file his Application. Accordingly, the application must be dismissed. My reasons for this decision follow.
Matters to be taken into account
[5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.366(2) of the Act, which reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.2 A decision whether to extend time under s.366(2) involves the exercise of a discretion.3
[7] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. In Nulty v Blue Star Group Pty Ltd (Nulty),4 the meaning of “exceptional circumstances” was addressed by the Full Bench of Fair Work Australia as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.
(emphasis added)
[8] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.5
[9] I now turn to address the particular matters to which regard must be had.
Reason for the delay
[10] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.
[11] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.6
Applicant’s evidence and submissions as to the delay
[12] At the hearing, the Applicant proffered the following reasons for the delay:
a) the Applicant did not receive a “separation certificate” (which is an “Employment Separation Certificate” produced by, and for purposes related to services provided by, Centrelink) signed by the Respondent until 2 March 2020, which the Applicant submits was a requirement for him to have filed his General Protections Application;
b) the Applicant was on “annual leave” for “most of the duration of the first 21 days”; and
c) the Applicant had “mental health issues”, which he qualified as being “anxiety from not having income” after being dismissed.
[13] Further, when I asked that Applicant if he had any evidence as to the period between the date the General Protections Application was due and the date it was actually filed (being the period of delay), the Applicant said “I do not have any evidence”.
Consideration
[14] None of the reasons put forward by the Applicant are reasons that lean toward a finding of exceptional circumstances.
[15] Firstly, the Applicant was not required to obtain a separation certificate to validly file his General Protections Application. The applicant’s mistaken belief as to what constitutes a valid application is not, in and of itself, an unusual circumstance in the Nulty sense. Indeed, the Full Bench in Nulty specify that ignorance of the statutory deadline is not an exceptional circumstance. By extrapolation, I take it that mere ignorance of any requirements arising under the Act (or accompanying regulations or rules) is unexceptional.
[16] Secondly, the Applicant’s submission as to his being on “annual leave” prior to the statutory deadline is misguided. The period that I need to focus upon is the period from the statutory deadline to the date of filing. The Applicant being on leave prior to that period is not to the point.
[17] Even so, the Applicant’s employment had been terminated. He was not able to take “annual leave” after the termination had taken effect. From what was disclosed at the hearing, I understand the Applicant to mean that he was travelling overseas when he says he was on leave. As I have said before, 7 mere overseas travel is not an exceptional circumstance because it is not an event that is “out of the ordinary course”.
[18] Finally, there are numerous decisions of this Commission that do not take the mere existence of mental health issues as a reason that lends to the existence of exceptional circumstances.8 In some cases, the severity of the mental health condition is beyond the degree otherwise encountered by those that suffer the same condition. Further, that extraordinary severity might account for the entire period of a delay.9 Put another way, it is not the existence of the mental health condition that has been found to lean toward an “unusual” or “uncommon” circumstance. It is a feature of that mental illness (such as the severity of the symptoms) that distinguishes an applicant’s experience of that illness as being of a special and distinct class.
[19] The Applicant conceded he did not have any evidence as to the severity of his alleged mental illness. At most, he has produced medical certificates that show the existence of an anxiety disorder. However, those certificates and/or reports do not go so far as to measure (to any degree) the Applicant’s capacity (or, rather, incapacity). In the absence of such evidence, I cannot determine whether the Applicant’s alleged condition falls into the class of cases where that illness leans towards a finding of exceptional circumstances.
[20] In view of the foregoing, I find that the reasons put forward by the Applicant as to the reason for the delay lean against a finding of exceptional circumstances.
Action taken by the Applicant to dispute the dismissal
[21] Neither party made submissions on this matter. I find it to be of neutral consideration.
Prejudice to the employer
[22] Neither party made submissions on this matter. However, the period of delay is brief (i.e. six days) and so there appears to be no prejudice to the Respondent. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.10 I find this criterion to be of neutral consideration.
Merits of the application
[23] The principles stated Kyvelos v Champion Socks Pty Ltd,11 albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.12
[24] By way of written submission, the Applicant claims he was terminated because he disclosed he had a mental health condition to his employer. Put in its broadest terms, it appears to me that the Applicant’s case is that adverse action (i.e. dismissal) was taken against him for a prohibited reason (i.e. discrimination).
[25] I make no finding as to the merits of such a claim. That the Applicant has made a bare assertion that there has been a breach of the general protection provisions of that Act does not lean to a finding of exceptional circumstances. As such, I find this criterion to be of neutral consideration
Fairness as between the Applicant and other persons in a like position
[26] Neither party made submissions on this matter. I find it to be of neutral consideration.
Conclusion
[27] Having regard to all the matters required under s.366, I find that the Applicant’s failure to explain the reason for the delay as a matter of exceptionality ultimately means that there are no exceptional circumstances. The parties have not made submissions on any other matters that need to be considered. As such, the Applicant’s application for an extension of time under s.366 of the Act is rejected. The Application is to be dismissed. An order to that effect will be published in due course.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for himself.
The Respondent appeared for himself.
Hearing details:
A hearing was held by telephone on 24 April 2020.
Printed by authority of the Commonwealth Government Printer
<PR718736>
1 Fair Work Act 2009 (Cth) s.366.
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
3 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
4 [2011] FWAFB 975, cited with approval in Tamu v Australia for UNHCR [2019] FWCFB 2384 at [16] – [20].
5 See: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 (at [13]). See also: Griffiths v The Queen (1989) 167 CLR 372 at 379; 87 ALR 392; 41 A Crim R 163; 63 ALJR 585; [1989] HCA 39 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
6 See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
7 Felipe v Your Bookkeepers Online Pty Ltd (part of Moore Stephens NSW)[2020] FWC 1620at [26].
8 c.f. Underwood v Terra Firma Pty Ltd t[2015] FWC 1387 at [12] (Sams DP), referring to Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 (Watson VP and Smith DP, Lewin C in dissent); Byfield v St Vincent De Paul NT[2020] FWC 524 at [22] (Cross DP); Burke v Techtronic Industries Australia Pty Ltd[2016] FWC 7035 at [13] to [14] (Dean DP).
9 Scott v Steritech Pty Ltd[2019] FWC 2970 at [97] (Sams DP).
10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
11 (1995) 67 IR 298.
12 Ibid at 299 to 300.
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