John McGowan v UGL Pty Ltd
[2023] FWC 2223
•4 SEPTEMBER 2023
| [2023] FWC 2223 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John McGowan
v
UGL Pty Ltd
(U2023/5738)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 4 SEPTEMBER 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Mr John McGowan (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 UGL Operations and Maintenance Pty Ltd (Respondent).
The Respondent has objected to the application on the ground that the application is 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
The matter was dealt with on the papers. It was initially listed for hearing on 4 August 2023. However, the Applicant provided medical evidence prior to this date that suggested that he would have difficulties representing himself in a hearing or a determinative conference at that time and possibly for some time after that date.
The parties were not in dispute over when the application was made. While there were disputed facts about the circumstances that gave rise to the dismissal of the Applicant, there were no contested facts regarding the jurisdictional issue. As such, I sought the views of both parties regarding the matter of jurisdiction being determined on the papers. In the case of the Applicant, I asked him to consult with his doctor to ensure that dealing with the matter in such a manner or indeed at all would be appropriate given his condition. He advised that his doctor did not think he should attend the Commission to give evidence but that dealing with the matter on the papers would be acceptable. The Respondent indicated that it did not oppose the matter being determined on the papers.
Submissions
By the time the decision to deal with the matter on the papers was made, both parties had made their submissions as per the original directions issued. However, given those submissions were made on the basis of the matter being heard in person, I invited both parties to make such additional submissions as they saw fit.
I should note that the original directions issued in the matter made it clear that the parties should address the issues set out in s.394(3) of the FW Act. In my subsequent communication to the Applicant inviting further submissions, I again stressed that submissions should address this issue. Notwithstanding this, the Applicant’s further submissions were, effectively, limited to the merits of the case and some explanation of the reason for the delay. In making further submissions, the Respondent noted this deficiency and submitted that the Applicant’s submissions regarding merit should be given little weight.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 17 May 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 27 June 2023.
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.”[1]
As I found above, the dismissal took effect on 17 May 2023. The final day of the 21 day period was therefore 7 June 2023 and ended at midnight on that day. As I found above, the application was made on 27 June 2023.
The application having 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.
Was the application made within such further period as the Commission allows?
Under section 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.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 7 June 2023. The delay is the period commencing immediately after that time until 27 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions
The Applicant submitted that the delay was due to two main factors. Firstly, he claimed that he was initially unaware of the 21-day limit for filing and only discovered this after he sought advice on making an application. Secondly, he claimed to have fallen into a state of deep depression following his termination, which prevented him from leaving his house and severely impacted his appetite and ability to sleep. He advised that after some weeks he sought medical advice and began treatment for depression. In support of his submission regarding incapacity he tendered a medical certificate provided by Dr Qamar.
The Respondent submitted that the reason given by the Applicant was not exceptional and not a valid excuse and that there was no evidence that explained how the Applicant’s alleged medical condition had impacted on his ability to lodge an unfair dismissal application. The Respondent further submitted that the medical certificate from Dr Qamar was completed on 26 June 2023, being one day prior to lodgment of his claim, and was simply backdated to 17 May 2023. In addition, the certificate stated that the Applicant was fit to work, study or participate in activities for more than 8 hours per week and noted that he was “looking for work”. As such, the Respondent submitted that the medical evidence submitted by the Applicant indicated he could have lodged his application within the prescribed time limit and was therefore insufficient to justify his late lodgement. The Applicant submitted in reply that he did not believe the dates on his medical certificate, nor its assessment of his capacity were relevant to his request for an extension but did not elaborate on why this was the case.
In support of its position the Respondent drew my attention to Australian Postal Corporation v Zhang[6] and Higgins v FQM Australia Nickel Pty Ltd[7] as support for the proposition that medical evidence needs to be of compelling nature if it is to be used to allow an extension of time.
Consideration
In the first instance, I will deal with the Applicant’s submission that he was unaware of the 21-day time limit. With respect to the statutory time limits imposed on applicants who wish to make an unfair dismissal claim or a general protections dismissal claim, the Full Bench in Nulty v Blue Star Group Pty Ltd noted as follows:
“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”[8]
It is clear from the decision of the Full Bench, which serves to reinforce long-held propositions regarding ignorance of various rights and responsibilities, that the Applicant’s submission in this regard cannot in the circumstances assist his application for an extension of time.
I then turn to the second of the Applicant’s contentions, being his capacity. In his submissions, the Applicant describes his condition in the period immediately after his termination as being such that he was, effectively, totally incapacitated. I accept that he may well have felt this way, and that the shock and distress over losing a job after such a long period of service would in all likelihood have prompted a period of depression and anxiety in most people. However, I am mindful of the Full Bench decision in Australian Postal Corporation, referred to by the Respondent, which cautions against members of the Commission making their own assessments of incapacity rather than relying upon medical evidence. In that case, the Full Bench said:
“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.
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.”[9]
That principle was confirmed by the Full Bench in the other case referenced by the Respondent being Higgins v FQM Australia Nickel Pty Ltd, where the Full Bench stated as follows:
“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.”[10]
From these decisions it is clear that the Applicant’s assertions about his state of health, emphatic though they may be, and any assumptions drawn by me based on those assertions do not provide a valid basis for an assessment of the Applicant’s capacity at the relevant time. To conclude that the Applicant was not physically and/or mentally capable of lodging an application, I need compelling medical evidence of such incapacity. As such, I have to turn to the doctor’s report submitted by the Applicant in this matter and decide whether it meets the test of being ‘compelling medical evidence’. I should add that to be compelling in this context, the evidence would need to be clear and unequivocal. Without seeking to labour the point, for the Applicant to be successful in having this matter count in favour of granting an extension, the medical evidence would have to make clear that he was so incapacitated in the relevant time period that he was not able to successfully perform a task such as completing an application for an unfair dismissal remedy.
I do not find that to be the case. I note that firstly, Dr Qamar did not assess the Applicant until some time after the 21-day period for filing his claim had passed. As such, and as perhaps insinuated in the Respondent’s submissions, Dr Qamar’s assessment of the period between termination on 17 May 2023 and examination on 26 June 2023 cannot be based on clinical observation, but rather only on information provided to him by the Applicant. This may not necessarily have been fatal to the Applicant’s case, as Dr Qamar may have decided that the cause of the Applicant’s distress was quite clearly his termination and as such, any depressive state would likely have commenced at or soon after the time of that termination.
Nevertheless, the issue that does arise from the medical evidence is Dr Qamar’s assessment of the Applicant’s capacity. The medical report states as follows:
“Can this patient do any work, study, or participate in activities of 8 or more hours per week? Yes. Looking for work.
How many hours can they work, study, or participate in activities on average each week? Normal Hours.”
This assessment is clearly intended to operate, at the very least, from 26 June 2023 until 16 July 2023, being the end of the period of incapacity specified in the report. Further, I do not think that it is confined to merely looking for work. While it may not encompass all potential activities, and indeed the Applicant submits that attending the Commission for a hearing was not recommended by his doctor, an activity such as lodging an application would appear to be within the ambit of the assessment. In support of this finding, I note that the Applicant lodged his FWC application the day after his examination, indicating he was clearly fit to undertake the task at that point.
This then raises the issue of whether the assessment of capacity should be considered to have retrospective effect. There is no indication in the medical evidence that the assessment does not also operate retrospectively, meaning that the Applicant may have been fit for looking for work or lodging a claim at an earlier time, including during the 21-day lodgement period. For me to conclude that the medical evidence before me was seeking to suggest that the Applicant was unfit to lodge his application in the period 17 May 2023 to 26 June 2023, I would have to read the report as claiming there were two distinct periods of incapacity. Specifically, the first period being 17 May 2023 to 26 June 2023 where the Applicant had no capacity to look for work or lodge an application and a second period, being 26 June 2023 to 16 July 2023 where the Applicant was capable of looking for work and lodging an application. There is simply no indication in the medical evidence that this is the case. As such, I find that the capacity indicated in the report applies to the whole period of the report, being 17 May 2023 until 16 July 2023.
Had the Applicant attended his doctor earlier and received a clear diagnosis that he was incapacitated to the point where he was incapable of lodging an application with the Commission, it may have been a different matter. However, he did not do so and so I can only rely on such medical evidence as he did obtain. This being the case, I find that there is no compelling medical evidence to support the contention that the Applicant was so incapacitated in the period between his dismissal and the lodgement of his claim that he could not have lodged his claim earlier or indeed within the time limit prescribed in the FW Act. As such, this is a matter which weighs against the granting of an extension.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was 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 benefit of the full period of 21 days to lodge the unfair dismissal application. This matter is thus neutral in determining exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The Applicant made no submissions on this issue. The Respondent submitted that the Applicant did not take any actions to dispute the dismissal. I find that the Applicant did not take any actions to dispute his dismissal.
As the Commission has found previously, disputing the dismissal is not taken to mean simply seeking legal advice. It must involve letting the employer know that the termination will be disputed. In addressing the issue of disputing the dismissal in Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd, Deputy President Colman said:
“The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware.”[11]
In the matter of Michael Stokes v Horgans Pty Ltd T/A Horgans, a case that shares some similarities to the present matter in terms of the Applicant not disputing the dismissal, Commissioner Johns made the following comments:
“Mr Stokes disputed his dismissal by lodging this application, albeit late.
The action taken by the Applicant weighs against granting him a further period to make his application.”[12]
Given the conclusions set out above, I find that the Applicant not taking any actions to dispute his dismissal is a factor that weighs against granting an extension. Had I been able to conclude that the Applicant was medically unfit to take any such actions in the period post his dismissal, I may have decided to place no weight on this issue. However, as set out above, I cannot draw that conclusion.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Applicant made no submissions on this matter. The Respondent submitted that while it did not claim any specific prejudice existed at the time of making submissions, it could not discount the possibility that such prejudice may exist and the presumed absence of prejudice should not weigh in favour of an extension.
I find that this matter is one that is neutral in determining whether to grant an extension.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. There are some significant differences between the parties regarding the facts of the matter and it would not be prudent or indeed possible for me to draw any conclusions about merits without hearing sworn evidence. On that basis, I find that the merits of the application are a neutral matter in determining if an extension should be granted.
Fairness as between the Applicant and other persons in a similar position
The Applicant made no submissions on this matter. The Respondent submitted that it should be given little if any weight. I am not aware of any relevant issues regarding this matter and I have treated it as neutral in my deliberations regarding an extension.
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 regarding:
(a) the reason for the delay, where I found no valid reason for the delay;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[13] 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.[14]
I found above that two of the matters from s.394(3) weighed against granting an extension and the other matters were all neutral. On that basis, 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.
DEPUTY PRESIDENT
Written submissions.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Australian Postal Corporation v Zhang[2015] FWCFB 5285.
[7] Higgins v FQM Australia Nickel Pty Ltd[2023] FWCFB 113.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[9] Australian Postal Corporation v Zhang[2015] FWCFB 5285 [21-22].
[10] Higgins v FQM Australia Nickel Pty Ltd[2023] FWCFB 113 [29].
[11] Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd[2022] FWC 2916 [10].
[12] Michael Stokes v Horgans Pty Ltd T/A Horgans[2015] FWC 7470 [16-17].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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