Justin Howson v Stone Outdoors Pty Ltd

[2016] FWC 8465

[2016] FWC 8465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Justin Howson
v
Stone Outdoors Pty Ltd
(C2016/6452)

DEPUTY PRESIDENT DEAN SYDNEY, 29 NOVEMBER 2016

Application to deal with contraventions involving dismissal.

[1] Mr Justin Howson (the Applicant) was employed by Stone Outdoors Pty Ltd (the Respondent) from October 2015 until his employment was terminated on 5 October 2016. He alleges that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations, and contends that the Applicant was dismissed due to performance and behaviour issues.

[2] The Respondent says that the Applicant was notified of his dismissal at a meeting on 4 October 2016 and the dismissal was confirmed by a letter dated 5 October 2016. Given the letter of termination does not specify the effective date of dismissal, I am prepared to accept the Applicant’s contention that it took effect on 5 October 2016. The Applicant’s general protections application lodged on 28 October 2016 was therefore made outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Commission.

[3] The matter was listed for hearing by telephone to consider the extension of time issue. At the hearing, Ms S Platel of McDonald Murholme Solicitors appeared, with permission, for the Applicant. Mr C Bourne appeared for the Respondent.

[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[5] Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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 meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 (Nulty) where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[8] It was submitted by the Applicant that at the relevant time he suffered from depression and a bipolar disorder, and his condition was aggravated by the dismissal which rendered him incapable of initiating proceedings within the 21 day time limit. The document filed on behalf of the Applicant entitled ‘Reasons for Extension of Time’ states: ‘In the three weeks following the dismissal, the Applicant fell into a hypomanic state, becoming anti-social, lacking energy, feeling unable to leave his house, abusing drugs and alcohol, having suicidal thoughts and self-harming.’

[9] It was further submitted that the Applicant sought medical treatment on 25 October 2016 and was prescribed medication to alleviate the effects of his mental impairment. ‘Following the treatment, the Applicant felt well enough to seek legal assistance and did so on 28 October 2016’.

[10] The Applicant relies on his medical condition as the sole explanation for the delay.

[11] The burden of demonstrating exceptional circumstances rests with the Applicant. The evidence adduced by him in support of his medical condition was oral evidence and a letter from his treating doctor dated 11 November 2016.

[12] The oral evidence given by the Applicant was that he was diagnosed with depression and bipolar in around 2011, and this worsened as a result of his dismissal. He said that during the period following his dismissal he attempted suicide by cutting his wrist with a knife. He said that his uncle taped up his wrist. There was no suggestion that he saw a doctor at this time.

[13] The Applicant was questioned about this by Mr Bourne of the Respondent, who put to him that his uncle had told employees of the Respondent that the Applicant cut his arm on some barbed wire while collecting firewood, and had not tried to harm himself. The Applicant denied this.

[14] The Applicant said that he did not see a medical practitioner between the date of his dismissal and 25 October 2016, and he was not under the care of anyone (e.g. psychologist) other than a general practitioner, in respect of his depression and bipolar.

[15] The letter from his doctor dated 11 November 2016 is in the following terms:

“Justin Howson is a long term patient of this medical centre and I confirm that he has been treated for Anxiety and Depression since 2015.

He attended here on 25 October 2016 with deterioration in the control of his depression with significant mood swings which had adversely affected his ability to manage matters in his life including submission of an unfair dismissal claim within the 21 day period from 4th October 2016, being the date of termination of his employment.”

[16] The Applicant attended the medical centre on 25 October 2016. Given he did not see a medical practitioner between this date and the date of his dismissal, the statement made in relation to his health condition appears to rely on the Applicant’s own description as to his condition during that period.

[17] Submissions were also made on behalf of the Applicant regarding an occasion (after his dismissal and before making this application) in which the Applicant had sent a text message to Ms Smith of the Respondent indicating he was going to harm himself. It was submitted that Ms Smith called the police and ambulance. The police spoke to the Applicant at his uncle’s house. It was submitted that the Applicant ‘pretended to be OK’ when the police arrived as ‘he had an aversion to hospital’. There was no evidence to support this submission.

[18] The Respondent gave evidence that the Applicant attended the workplace on 26 and 28 October 2016 and behaved in a threatening manner. As a result, the Respondent called the police.

[19] In my view, the letter from the Applicant’s doctor does not support the submissions made on behalf of the Applicant as to his incapacity, nor does it deal with the Applicant’s assertion that he sought to harm himself, or that he suffers from bipolar. In addition, I find it inconsistent with the submissions made by the Applicant regarding his incapacity that he was not under the care of a specialist such as a psychiatrist or psychologist.

[20] An applicant needs to provide a credible reason for the whole of the period that the application was delayed. 2 I am not satisfied that the Applicant has made out a credible reason.

[21] It is clear that the Applicant had been aggrieved by the dismissal. However, stress, shock and confusion (referred to in his submissions) are not uncommon reactions or responses to other persons after being dismissed. Such responses are not exceptional and do not provide an acceptable reason that would explain the whole period of the delay.

[22] On the material before me, I am not satisfied that the Applicant has provided sufficient evidence to prove that the delay was caused by him being incapacitated to an extent which prevented him from lodging the application within the statutory time limit. Had the Applicant provided medical evidence consistent with the submissions he made, I would have considered this to be an acceptable reason for the delay.

[23] For the above reasons, I am not satisfied that the explanation of delay advanced by the Applicant constitutes an exceptional circumstance.

Any action taken by the person to dispute the dismissal

[24] There is no evidence to suggest that the Applicant has taken any action to dispute his dismissal until the present application was lodged. This weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[25] The Company does not claim that it would suffer any prejudice if the application to extend time is granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[26] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 3

[27] The reasons for the dismissal and the circumstances leading up to the dismissal are strongly contested between the parties. I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[28] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 4 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’5

[29] The Applicant submitted that a person in a like position would be a person who had not lodged a general protections application within the 21 day time period by reason of psychiatric difficulties or mental impairment. The Applicant’s submissions relied on some decisions of the Fair Work Commission 6 which found the existence of ‘exceptional circumstances’ in situations where the applicant was mentally unwell.

[30] A decision to extend time, whether in a general protections application or an unfair dismissal application, is discretionary. In the cases referred to by the Applicant, the Commission members, in balancing all of the factors which were required to be considered, exercised their discretion to extend time. I note also that the medical evidence in the cases relied on by the Applicant was in my view stronger than in this matter.

[31] Accordingly, I find this to be a neutral consideration.

Conclusion

[32] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[33] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

S Platel for the Applicant.

C Bourne for the Respondent.

Hearing details:

2016.

Sydney and Melbourne (by telephone):

November 28.

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at pp. 408‒409.

 3   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 4   [2015] FWC 8885.

 5 Ibid at [29].

 6   McCauley v Office HQ [2015] FWC 3654; and Woodiwiss v Allanvale Apartments and Motor Inn[2015] FWC 1822.

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