Lisa Spano v Dr Mark Shillito
[2023] FWC 546
•6 MARCH 2023
| [2023] FWC 546 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Spano
v
Dr Mark Shillito
(U2022/12404)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 6 MARCH 2023 |
Application for an unfair dismissal remedy – application filed 2 days out of time – medical evidence relied upon by applicant unsatisfactory to explain delay – carer’s reasons for delay relied upon by applicant not supported on the evidence - reasons for delay unsatisfactory – no exceptional circumstances – application dismissed.
Introduction
On 30 December 2022, Ms Lisa Spano (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Dr Mark Shillito, Psychiatrist (Respondent).
There is no dispute between the parties that the Applicant was dismissed within the meaning of s.386 of the Fair Work Act 2009 (Act). Nor is there any dispute between the parties that the Applicant’s dismissal took effect on 7 December 2022, and that she was notified of her dismissal on that date.
In accordance with s.394(2)(a) of the Act, the Applicant should have filed her Application by 28 December 2022 to be within the 21-day time period. It follows that the Applicant has filed her Application 2 days late, or 23 days after her dismissal took effect.
An unfair dismissal application must be made within 21-days after a dismissal takes effect, or in such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 2 days outside of the statutory 21-day period, it is necessary that I determine whether to extend the time for the filing of the Application under s.394(2)(b) and (3) of the Act.
At the hearing, the Applicant appeared for herself, and Ms Dominique Egan, Solicitor and Director of Workplace Relations at the Australian Medical Association, appeared for the Respondent.[1]
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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 [21-day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance…”[2]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[3]
In Mohammed Ayub v NSW Trains[4], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[5]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[6] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of a delay.[8]
The Applicant (relevantly) made the following written submissions as to the reasons for her delay in filing her Application:
“Thank you for your correspondence dated January 25th, 2023.
I believe I have legitimate and exceptional reasons for being 2 days late with my Unfair Dismissal Application.
I have been caring for my adult daughter who unfortunately has multiple chronic (and often acute) mental health and physical health issues for many years.
My daughter Sophie became extremely unwell in early December 2022 with covid 19, most likely contracted whilst in North Shore Hospital Emergency hospital being treated for heart issues (following a heart surgery PFO closure earlier that year).
Sophie continued to be very unwell into mid-late December 2022, and her mental health also rapidly deteriorated. Sophie experienced multiple episodes of suicidal ideation over the period in December 2022-January 2023…and I have been very overwhelmed with the daily responsibility of caring for her, taking her to multiple medical appointments, trying to keep her safe and trying to arrange for her to gain admission to an appropriate private mental health clinic, all made more difficult by the Christmas & New Year period.
Sophie is now booked for admission into The St John Of God Clinic at Burwood on Monday January 30th, 2023 for an estimated 4-6 week stay.
This information can all be corroborated by her long term General Practitioner, Heart Specialist, Royal North Shore Hospital, Psychiatrist and the Burwood Clinic Admissions team.
I will request her GP Dr Jane Thompson to provide a letter confirming the information I have provided in regard to Sophie’s most recent health and psychological issues and the sequence of events. If you require further communication from other medical specialists involved, I will also reach out to them if deemed necessary.
I respectfully request that my lateness of 2 days in lodging my Unfair Dismissal Application was due to serious exceptional family circumstances, and should not negate the merit or hearing of my case.
My unexpected and completely unexplained firing from my regular ongoing job of over 2 years working with Dr Shillito definitely made dealing with the difficult circumstances of managing my daughter’s care harder.
I remained very bewildered by Dr Shillito’s repeated denials of my requests by phone or email of a simple explanation of his reasons for firing me without notice, whilst also feeling completely humiliated by his brief and impersonal delivery of the news at the completion of my final rostered shift before the practice closed for the regular planned Christmas December & January office closure.
My working relationship with Dr Shillito had always been friendly and cordial, and at no time did he give me warning or any reason to believe I was at risk or about to be terminated from my employment prior to December 7th, 2022.
If you require and further information or clarification, please don’t hesitate to contact me.
Warm regards and many thanks for your assistance.”[9]
…
“As requested I have sent documentation in the form of a Medical Certificate from my long term General Practitioner in support of my exceptional circumstances for being 2 days outside the 21 day period in filing my Claim for Unfair Dismissal.
I could pursue my daughter’s cardiologist, psychiatrist, psychologist and other medical specialists who are involved in her care to write letters of support about how acutely unwell Sophie has been since early December 2022.
I could also request a letter from her current treating psychiatrist at The St John of God Hospital in Burwood where Sophie is an inpatient, but would need an extension of time as it’s very difficult and time consuming trying to get in touch with these medical specialists requesting documentation.
Please don’t hesitate to contact me for clarification or more details if required.
Warm regards”[10]
The Applicant, absent leave to do so, also made submissions in-reply. Those submissions essentially go to the merits of her Application, and in respect of reasons for delay, state:
“It also added to the trauma of trying to care for my daughter whilst she was both mentally unwell, including suicidal ideation and then both of us suffering from covid-19, which unfortunately for Sophie seems to have turned into “long covid”.
Dr Shillito did eventually offer to meet me in his office in December 2022, sometime after my sacking, but as my daughter and I were suffering from covid that became impossible.
In January, after I contacted my work colleague Joanne, Dr Shillito made a second appointment to meet with me, but then he later cancelled that meeting with no reason supplied.
I have also offered to attempt to obtain correspondence from my daughter’s mental health team and her cardiologist in support of my application being 2 days after the usual 21 days, but as I cannot afford legal representation (such as through the AMA),
it seems I’ve been disadvantaged by not receiving professional advice and representation.I await further correspondence and respectfully and strongly request that my claim still be heard, as I believe it is an example of exactly why these laws are in place to protect employees from unfair dismissal.”[11]
In support of her submissions, the Applicant relies upon a medical certificate dated 3 February 2023 from Medical Practitioner (GP) Dr Jane Thomson (Medical Certificate), which reads:
“This is to certify that on [no date entered] I examined the above named person. Lisa is a long term patient of this practice.
I can confirm that she has been responsible for the care of her adult daughter who has long term medical and psychiatric disorders.
I can confirm that Lisa was required to provide extra care and supervision for her daughter throughout December and January, when her daughter became unwell with Covid 19 and her mental health was subsequently destabilised by this. Her daughter became suicidal, required supervision and attendance at multiple medical appointments and has been admitted to a Psychiatric Hospital on 2/2/2023.
I understand that Lisa was dismissed from her job without notice on 7/12/2022 and has been unable to provide her documentation regarding her dismissal within the required time frame due to her personal commitments re her daughter’s health.”[12]
A review of the Medical Certificate relied upon by the Applicant from Dr Thomson identifies that:
a) The Medical Certificate does not identify the date upon which the Applicant was assessed or examined by Dr Thomson. Given it is dated 3 February 2023, it is apparent that the Applicant was not assessed or examined by Dr Thomson prior to that date (i.e. there is no reference to previous appointments or information set out in progress notes).
b) The Medical Certificate does not certify the Applicant as being unfit or incapacitated for any specific days, or any particular date period.
c) The remainder of the statements or information set out in the Medical Certificate do not appear to be attributable to an assessment or examination of the Applicant. Rather, the Medical Certificate merely makes observations as to the Applicant being responsible for the care of her daughter (or for her daughter’s extra care and supervision) throughout December 2022 and January 2023, and attendance at her daughter’s multiple medical appointments. The reference to the Applicant’s daughter being admitted to a Psychiatric Hospital on 2 February 2023 does not explain the period between the Applicant’s dismissal (on 7 December 2022), and the date she filed her Application (30 December 2022).
d) The Medical Certificate also makes reference to Dr Thomson’s ‘understanding’ as to the Applicant’s inability to provide documentation for the purposes of these proceedings. I work on the basis that such understanding does not arise from an assessment or examination by Dr Thomson of the Applicant, but via information that has been told or otherwise communicated to Dr Thomson by the Applicant (that Dr Thomson merely repeats in the Medical Certificate).
e) Despite the Medical Certificate referring to the Applicant being responsible for the care of her daughter (or for her daughter’s extra care and supervision) throughout December 2022 and January 2023, the Applicant was able to file her Application on 30 December 2022, and has been in communication with the Commission in respect of her Application during January 2023. In other words, the blanket reference to December 2022 and January 2023 in the Medical Certificate does not differentiate between those days or times during that period that the Applicant was evidently able to engage or communicate with the Commission, and the days and times (again, during that period) that she did not.
The Respondent (relevantly) made the following submissions in respect of the Applicant’s reasons for delay:
“10. The Applicant says that she was late in the filing of her claim because she was caring for her adult daughter who had been unwell with COVID and therefore required additional care and supervision.
11. Dr Thomson, who appears to be the Applicant’s general practitioner, has stated that the Applicant has been responsible for the care of her adult daughter who has long term medical and psychiatric disorders. Dr Thomson goes on to state that the Applicant was required to provide extra care and supervision for her daughter in December and January when she became unwell with COVID-19. While Dr Thomson expresses a view about the health issues experienced by the Applicant’s daughter, no evidence has been provided from the Applicant’s treating doctors providing specifics of the health problems she experienced and/or the additional care required following the Applicant’s dismissal.
12. Carer’s responsibilities, be it caring for young children, adult children or parents (and everything in between) are not of themselves exceptional circumstances. Dr Thomson and the Applicant has both said the Applicant’s daughter’s health problems are long term, and the Applicant was caring for her daughter while working for the Applicant. In the decision of Knott v MSS Security [2017] FWC 6491the Fair Work Commission found that the Applicant’s carer’s responsibilities which required him to care for his wife following her discharge from hospital with a back injury did not constitute exceptional circumstances.
13. In the decision of Moutafis v IA Support Pty Limited T/A Imaging Associates [2022] FWC 772 the Fair Work Commission found that in the absence of any evidence that the Applicant’s carer’s duties changed after her dismissal, carer’s responsibilities were not an acceptable reason for delay.
14. In this case, there is no evidence before the Fair Work Commission that the responsibilities of the Applicant for her daughter’s care changed after her dismissal.
15. The Respondent did engage with the Applicant in response to her request to meet following her dismissal. Arrangements were made to meet on 14 December 2022, however, the Applicant had to cancel because she had COVID-19. The Applicant’s email to the Commission makes no reference to her having COVID or going away on holidays as set out in her text messages to Dr Respondent.
16. It is the Respondent’s respectful submission that the Applicant has failed to meet the threshold for establishing that there were exceptional circumstances for the delay in the filing of her application.”[13]
At the Hearing, the Applicant made oral submissions essentially repeating the issues and matters she had already covered in the materials she had already filed.[14]
The Respondent made the following oral submissions at the Hearing:
“DEPUTY PRESIDENT: All right, I’ll turn to the respondent. Ms Egan, what did you wish to say, beyond what’s already set out in your written submissions?
MS EGAN: Thank you. Not a lot. I think while I can express some sympathy for the applicant and her personal circumstances, there is no objective evidence before the Commission that what was happening during the 21 day period and the two days subsequently was sufficiently exceptional, in the sense that she was her daughter’s carer while she was employed by the respondent. And the absence of any evidence in that regard and also in light of the text messages which has already been covered, that she was planning to come and meet with the respondent, but for the fact that she then got COVID, it does seem that there was some capacity to go about what one might call other responsibilities and other duties in life, rather than simply just being solely occupied by caring for her daughter at that time. So we would say that the threshold of exceptional circumstances for an extension of time has not been met.”[15]
Exceptional circumstances may well be found to exist where an applicant has carer’s responsibilities that prevent him or her from filing an application within the 21-day time period, and for the relevant period of the delay. But specific and probative evidence, covering the 21-day time period and the period of delay, will be required. Each case will turn upon its own facts and circumstances.
In this case, I do not accept that the Applicant has provided “probative evidence” explaining or justifying why she was prevented (or unable) to file her Application within 21-days of her dismissal. Nor do I accept that the Applicant has provided probative evidence explaining:
a) the specific two-day delay in filing her Application;
b) the basis upon which she had time to meet with the Respondent during the 21-day period (see text message from the Applicant to the Respondent dated 10 December 2022), in circumstances where her own Medical Certificate infers that she was at all times consumed during December 2022 and January 2023 with the care and supervision of her daughter such that she had no time to file her Application;[16]
c) the text message she sent to the Respondent on 14 December 2022 stating that she will be away until 15 January 2023;[17] and
d) the basis of her purported incapacity arising from her (and her daughter’s) COVID-19 diagnosis on 14 December 2022 (i.e. was the Applicant simply unfit for work, but otherwise functional, or was she bed-ridden, or something else?).[18] The impact of COVID-19 upon an individual may vary significantly. The fact that someone has COVID-19, or is diagnosed with COVID-19, does not automatically mean that they are wholly incapacitated. Further, if they are indeed incapacitated, cogent medical evidence will be required to support such a claim. No relevant medical evidence going to the Applicant’s health status arising from COVID-19 has been tendered by her in these proceedings.
In short, the medical evidence relied upon by the Applicant does not establish (in any probative sense) that she was prevented during the 21-day time period post her dismissal, or the two days post that 21-day time period, from filing her Application.
Finally, whether a person decides to avail themselves of legal advice or representation is a matter for them.[19] It is not a matter that explains a delay in filing an application. The Commission’s website (running 24/7) has a wealth of information going to the filing of applications (especially unfair dismissal applications and dealing with requests for an extension of time) absent the ‘need’ for legal advice or representation.
All in all, on the evidence before me, I find that that the Applicant’s reasons, for the 2-day delay in filing her Application, are unsatisfactory. The reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain her delay. I thus conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Whether the Applicant become aware of the dismissal after it had taken effect[20]
There is no dispute that Applicant was made aware of her dismissal on the day that it took effect. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[21]
The Applicant raised concerns as to her dismissal with the Respondent during the 21-day time period. In other words, it is apparent that the Applicant disputed her dismissal at the time she was dismissed, but still failed to file her Application within the 21-day statutory time period.[22] I consider this criterion (in respect of the action taken by the Applicant to dispute her dismissal) to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Prejudice[23]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 2-day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[24] In this case, I treat this criterion as a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Merits[25]
The Applicant says that she was dismissed absent any prior warning, without notice, and without being told of the reason/s for her dismissal. I note that the Applicant was a casual employee.
The Respondent says that the reason for the Applicant’s dismissal was that she often advised that she would be unable to work a particular shift on very short notice (including on the day the shift was to be worked), and would regularly seek to swap or vary allocated shifts. Whilst the Respondent was accommodating to the Applicant, the regularity of the Applicant’s conduct (or her unreliability in attending upon notified shifts) ultimately became unsustainable, and the Applicant’s services were simply no longer required.
The principles stated Kyvelos v Champion Socks Pty Ltd[26] (Kyvelos), 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 …”.[27]
In Kornicki v Telstra-Network Technology Group,[28] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[29]
The merits of the Applicant’s case, by reference to the Respondent’s allegations of unsatisfactory attendance (or the Applicant constantly calling in to cancel or swap allocated shifts), and the Applicant’s counter assertions and denials, were not tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application).[30]
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[31]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[32] Neither party made any relevant submissions as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria (reason for delay), considered individually, points towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. one criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[33]
On the basis of my reasons (and findings) set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file her Application.[34] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for herself.
Ms Dominique Egan, Solicitor and Director of Workplace Relations, Australian Medical Association, appeared for the Respondent.
[1] The Respondent is a member of the Australian Medical Association. See s.596(4)(a) of the Fair Work Act 2009.
[2] [2011] FWAFB 975.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[4] [2016] FWCFB 5500.
[5] Section 394(3)(a) of the Act.
[6] [2021] FWC 3903.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[8] Ibid, at [40].
[9] Email from the Applicant to the Chambers of Vice President Catanzariti dated 26 January 2023 (2:34 PM).
[10] Email from the Applicant to the Chambers of Deputy President Boyce dated 3 February 2023 (5:21 PM).
[11] Email from the Applicant to the Chambers of Deputy President Boyce dated 13 February 2023 (4:21 PM).
[12] This Medical Certificate was attached to the email from the Applicant to the Chambers of Deputy President Boyce dated 3 February 2023 (5:21 PM).
[13] Respondent’s Submissions, 13 February 2023, at [10] to [16].
[14] Transcript, PN54, PN56, PN68, PN72, PN82, PN92, PN95, PN105-PN107.
[15] Transcript, PN101 to PN102.
[16] Albeit the meeting arranged for 14 December 2022 was subsequently cancelled by the Applicant as she states she was diagnosed with COVID-19. Transcript, PN88.
[17] Transcript, PN25 to PN40 and PN49 to PN50 (no objection taken to text messages by Applicant).
[18] Transcript, PN92: the Applicant states “Yes, I was functional”.
[19] Transcript, PN60.
[20] Section 394(3)(b) of the Act.
[21] Section 394(3)(c) of the Act.
[22] A delay is not automatically justified merely because an employee is waiting to discuss their dismissal with their employer, but does not get a chance to have such discussions, or the discussions are postponed. By way of analogy, see, for example, Ryan v Power & Data Support Services Pty Ltd[2015] FWC 2430, at [15] per Sams DP.
[23] Section 394(3)(d) of the Act.
[24] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[25] Section 394(3)(e) of the Act.
[26] (1995) 67 IR 298.
[27] Ibid, at 299 to 300.
[28] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[29] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[30] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[31] Section 394(3)(f) of the Act.
[32] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[33] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[34] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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