John Musique v Bouradas Investments Pty Ltd ATF T & K Bouradas Family Trust

[2020] FWC 6930

[2020] FWC 6930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

John Musique
v
Bouradas Investments Pty Ltd ATF T & K Bouradas Family Trust
(C2020/7904)

DEPUTY PRESIDENT BOYCE SYDNEY, 23 DECEMBER 2020

Application to deal with contraventions involving dismissal — application filed out of time — whether “exceptional circumstances” — applicant claims mental infirmity is the reason for delay— insubstantial evidence of mental infirmity — no exceptional circumstances — application dismissed.

Introduction

[1] On 23 October 2020, Mr John Musique (Applicant) filed a Form F8 (General Protections Application) with the Fair Work Commission (Commission). The Applicant claims that his employment with Bouradas Investments Pty Ltd ATF T & K Bouradas Family Trust (Respondent) was terminated by the Respondent on 9 September 2020 in contravention of Part 3-1 of the Fair Work Act 2009 (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] The Applicant appears to have lodged his application 23 days outside of the statutory time limit. To be within time, the Applicant should have lodged his General Protections Application on or before 30 September 2020.

[4] Following the issue of directions, and with the consent of the parties, I determined to resolve this matter “on the papers”. The question before me is whether to allow the Applicant an additional period within which to lodge his General Protections Application having regard to the requirements and limitations provided under ss.365 and 366 of the Act.

[5] Having regard to the parties’ submissions and evidence before me, 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 General Protections Application. My reasons for this decision follow.

Representation by a lawyer or paid agent

[6] The Respondent sought to be represented by Colin Biggers & Paisley Lawyers. I granted permission for such legal representation taking into account the necessary considerations under s.596 of the Act. I did so having had regard to the fact that the grant of an extension of time for a late application is a complex matter pertaining to the Commission’s jurisdiction. I determined that having the assistance of legal practitioners would assist the Commission in conducting this matter more efficiently.

The employment and the dismissal

[7] The Applicant was employed by the Respondent from 24 August 2020 in the full-time position of Administration Co-ordinator/Scheduler.

[8] The Applicant’s employment was terminated on 9 September 2020.

Matters to be taken into account

[9] 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.”

[10] 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

[11] 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)

[12] 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 I now turn to address the particular matters to which regard must be had.

Reason for the delay

[13] 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.

[14] 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

[15] As I understand the Applicant’s position, he says that he “suffers from major depression” and that this condition is the reason for his delay in lodging his General Protections Application on time. However, on the material before me, I am not satisfied this is the case. The Applicant sent a photo of a prescription for a medication known as Pristiq. There is no evidence that this medication is taken to treat the mental infirmity he claims to suffer from, let along proves that his illness is causative of the delay.

[16] The same can be said for a medical certificate signed by Dr Prem Adhar. That document states the Applicant was “unfit to continue his usual occupation” between 23 November 2020 and 24 November 2020, inclusive. However, those dates are not the dates in question (being the date between the expiry of the statutory deadline 21 days after dismissal, and the Applicant’s eventual filing of the General Protections Application). This document is therefore of no assistance in my determination in this matter.

[17] The Respondent submits that the Applicant fails to identify any credible reason for his delay and has provided insufficient medical evidence in support of his claim. The Respondent has referred me to a number of decisions of this Commission that lend to the principle that where one party submits that health problems are an impediment to lodging an application, this is a matter of evidence. 7 I agree with this position.

[18] 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. 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. 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 has not provided persuasive evidence that he suffers from “major depression”. Likewise, he has not provided evidence that this condition, even if it does exist, affects him such that he is able to satisfy the test laid down in Nulty. Having regard to the foregoing, and noting there is no credible reason for the delay, I find that the reasons for delay put forward by the Applicant lean against a finding of exceptional circumstances.

Action taken by the Applicant to dispute the dismissal

[20] The Applicant has not made any submissions as to whether he took any action to dispute his dismissal. The Respondent submits that the Applicant did not take such action. As such, I treat this criterion as being a neutral consideration.

Prejudice to the employer

[21] The Respondent accepts that no prejudice would be suffered by the Respondent in allowing an extension of time to be granted for the Application. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 8 In the circumstances, I treat this criterion as being a neutral consideration.

Merits of the application

[22] The principles stated Kyvelos v Champion Socks Pty Ltd,⁹ 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 …”. 10

[23] In short, the Applicant claims that he was not invited to a work function because of racial reasons. While I note that the Respondent strongly denies this claim, prima facie, the discrimination described by the Applicant has no bearing on his dismissal. Moreover, the Applicant alleges general “bullying” conduct by the Respondent’s employees but only does so in vague, general terms.

[24] The Respondent submits in respect of the merits of the General Protections Application, that on the material before the Commission the Applicant does not have an arguable case that his dismissal was because of discriminatory reasons, or the exercise of any other workplace right.

[25] While the Applicant does not need to have put the particulars of his claim to the Commission, I am nonetheless unable to discern the thrust of his General Protections Application (that is, whether he was dismissed for reasons prohibited by Part 3-1 of the Act). That being the case, I treat merits of the General Protections Application as being a neutral consideration in this matter.

Fairness as between the Applicant and other persons in a like position

[26] Neither party made submissions that there was a person in a like position to the Applicant. I therefore treat this criterion as being a neutral consideration.

Conclusion

[27] Having considered the circumstances, and each of the criteria independently and as a whole, I am not satisfied that there are exceptional circumstances within the meaning of s.366 of the Act. I am therefore unable to grant an extension of time to the Applicant to file his General Protections Application. Accordingly, the matter is to be dismissed.

[28] An order to this effect is to follow the publication of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725680>

 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   See: Lawford v Sydney Essential Oil Co. Pty Ltd[2012] FWA 1718; Wemyss v Mission Australia Employment Services[2010] FWA 1798.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

9 (1995) 67 IR 298.

 10   Ibid at 299 to 300.