Lorraine Fitzjohn v Technical and Further Education Commission T/A TAFE NSW
[2022] FWC 2557
•23 SEPTEMBER 2022
| [2022] FWC 2557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lorraine Fitzjohn
v
Technical and Further Education Commission T/A TAFE NSW
(U2022/3040)
| COMMISSIONER CAMBRIDGE | SYDNEY, 23 SEPTEMBER 2022 |
Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Lorraine Ann Fitzjohn (the applicant) and the respondent employer is the Technical and Further Education Commission T/A TAFE NSW (the employer or TAFE NSW).
The application was lodged with the Fair Work Commission (the Commission) at Sydney on 11 March 2022. The application indicated the date that the dismissal of the applicant took effect was 3 February 2022. Therefore the application was made some 15 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.
On 13 April 2022, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, filed on 11 March 2022, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).
During a Pre-Hearing Conference/Conciliation proceeding conducted on 20 April 2022, attempts to reach a conciliated settlement of the matter were unsuccessful. On 21 April 2022, the Commission issued Directions which required the Parties to file and serve evidence and submissions in respect to the out of time objection, and to also provide clarification whether they were content for the out of time objection to be determined upon the documentary material which had been filed, or alternatively if either Party requested a Hearing.
Subsequently, the Parties have provided evidence and their respective submissions regarding the out of time objection. On 29 June 2022, the employer filed and served an email which relevantly included that “TAFE NSW respectfully submits that the matter be determined upon the basis of the written material filed by the parties.” On 8 July 2022, the applicant filed and served an email that stated inter alia, “I am requesting, in this communication, to appear in person, to make my ‘Claim for Damages’ against the TAFE COMMMISSION (INC.) (NSW)” Further, the email of 8 July 2022, from the applicant also stated, “I will be requesting a date in the Commission to make Claims and exercise my Rights under Article 7, International Covenant on Civil and Political Rights, 1980, and the CRIMES ACT 1900 (NSW) & CRIMINAL CODE ACT, 1995 and my Claim for Compensation under Australian Taxation Law, by the Australian Taxation Office, for and on behalf of 13,000 NSW Professional Teachers.”
As the applicant had requested “to appear in person” the Commission issued a Notice of Listing for a Determinative Conference/Hearing – Jurisdiction only, in person, at 80 William Street, East Sydney at 10:00 am on 21 July 2022.
On 11 July 2022, the applicant filed and served an email which relevantly included a “request to appear live on-camera or, appear by phone, with my Advocate, speaking for me.” As the employer had previously requested that the out of time objection be determined upon consideration of the filed documentary material, it unsuccessfully sought to have the applicant agree to a process which avoided any requirement for a Hearing.
In due course, the Commission arranged the configuration of the Determinative Conference/Hearing – Jurisdiction only, so that the applicant and her representative Mr D Balogh, appeared via video link, and the employer was granted permission pursuant to s. 596 of the Act, to have Mr J White solicitor from MinterEllison lawyers, appear in person, together with Mr J Oliveux the employer’s Director of Workplace Relations. The Hearing, which was conducted in Sydney on 21 July 2022, involved the admission of documentary material as evidence without the need for any witness cross-examination. At the conclusion of the Hearing, the Commission granted a request that was made by the applicant’s representative to permit further documentary material to be introduced as evidence in accordance with a timetable that finalised on 19 August 2022.
Relevant Factual Background
The applicant had worked for the employer for about 12 years and 9 months. The applicant was employed as a part-time Stores Attendant in the Health and Beauty Department at the Gosford branch of TAFE NSW.
The applicant was dismissed from her employment on 3 February 2022. On 3 February 2022, the applicant received an email from TAFE NSW which provided advice of the termination of her employment. Relevantly, this email included the following: “The reason for the decision to terminate your employment is because you are not compliant with the TAFE NSW COVID-19 Vaccination Policy.”
At the time of her dismissal, 3 February 2022, the applicant was on a period of approved personal leave which had been supported by a medical certificate dated 29/01/2022, and which indicated that the applicant’s period of absence from her usual occupation was from 29/01/ 2022 to 25/03/2022.
On 16 February 2022, the applicant arranged to have a former co-worker distribute an email which included a communication from the applicant that was addressed to all “Gosford & Wyong H & B Staff”. The applicant’s email communication of 16 February 2022, relevantly included the following extracts:
“This is a touch emotional for me to write but felt drawn to speak my truth in regards to the email that was sent to you all.
Firstly I did not leave I was TERMINATED by TAFE NSW as I stood in my truth and did not want to be part of this experimental vaccine and as hard as my decision was I am proud. This was my choice and I am happy.”
and
“I am not saying this has been easy to move on from but I am lucky to have found a large group of fellow terminated TAFE staff and we are a great support for each other.”
and
“Please all know that being terminated was because of the choice I made this was the right decision for me 100%.
Obviously for me as one door closes another one opens and right now I am excited for my future away from TAFE.
Goodbye and Goodluck
Lorraine”[1]
On 21 February 2022, the applicant sent an email to the Head of WHS and Wellbeing at TAFE NSW. The applicant’s email communication of 21 February 2022, relevantly included the following extracts:
“I have not felt up to contacting you but could not put off any longer. I have spoken to you on Teams twice and we discussed the mandate in attendance was yourself, Kim K and myself. It was an uncomfortable conversation as all of us were coming to terms with the Mandate and the requirement to have an injection to be able to work.”
and
“If I do not receive a reply from you I will take that you agree with my above assumptions and that TAFE NSW has been discriminative against some previous employees which includes myself.
Kind Regards
Lorraine”[2]
On the following day, 22 February 2022, the applicant sent an email to TAFE NSW. The applicant’s email communication of 22 February 2022, relevantly included the following extracts:
“I have been terminated from TAFE NSW in the 3-2-22 whilst on approved sick leave shame on TAFE NSW. I have been paid a termination amount last Thursday 17-2-22 please send me the payslip for this as soon as possible today would be good to my email”[3]
On 24 February 2022, 21 days elapsed after the dismissal of the applicant took effect.
On 11 March 2022, the applicant lodged her unfair dismissal claim Form F2.
The application for relief from unfair dismissal was made 36 days after the dismissal of the applicant took effect. Therefore the unfair dismissal application was made 15 days after the 21 day time limit stipulated by subsection 394 (2) (a) of the Act.
The Applicant’s Case in Support of an Extension of Time
The applicant provided a Statutory Declaration dated 17 May 2022, which was included with her evidentiary material, and which became Exhibit 1. In addition, the applicant introduced documentary material which contained a combination of factual assertions, annexures, and submissions. These materials became Exhibits 2, 3, and 4, and represented the applicant’s documentary case in support of an extension of time and her opposition to the out of time objection raised by the employer. This documentary material was supplemented by oral submissions made during the Hearing by the applicant’s representative, Mr Balogh.
The applicant’s Statutory Declaration of 17 May 2022 indicated that immediately upon receiving advice of the termination of her employment, the applicant was in a state of shock, and she was traumatised and stressed. The applicant stated that it took her many weeks struggling with what happened, and that at this time, mentally she could not have prepared an unfair dismissal claim. Further, the applicant said that she had been trying to get legal advice but that most lawyers were hesitant to provide her assistance. The applicant also stated that she was very stressed and depressed and that her case was not a normal case because she had been terminated for not allowing a medical experiment to be injected into her body.
The submissions made by the applicant also asserted that her health had suffered, and she was by no means up to the challenge of doing an unfair dismissal claim noting that she only had a short timeframe to work with. The applicant further submitted that it should be noted that her dismissal occurred whilst she was on a period of approved personal leave and that most people were not experienced or trained to prepare an unfair dismissal claim. However, the applicant submitted that she managed to prepare and submit a claim during a very stressful period and that the Commission should accept her application based on exceptional circumstances.
The applicant’s representative, Mr Balogh, provided both written and oral submissions during the Hearing. The written submissions that were provided by Mr Balogh referred to criminal charges and an amicable agreement to reveal treason. These submissions attached a document that was entitled:
“Expose the works of Darkness
AMICABLE AGREEMENT Filed
BETWEEN ALL COURT OFFICERS AND OTHERS IN THIS MATTER”
The further written submissions that were provided by Mr Balogh during the Hearing included the following extracts:
“I Will be seeking the names of all Attendees of this Fair Work Commission, today!
That said, I will not commit any Crime in this hearing, today and the Fair Work Commission CANNOT MAKE ANY LAWFUL DETERMINATION than to ISSUE the document for my Compensation for the Question of Fact there is NO NATIONAL LAW to enforce or mandate a medical experiment against article 7, ICCPR, ratified by former Deputy President of FWA, Dean!”[4]
By way of oral elaboration upon his documentary submission materials, Mr Balogh stated that the applicant could not find adequate assistance to make her application in the stated 21 days. Further, Mr Balogh stated that there was a late application made and it was done because of the stress and anxiety bought about by the defendant. Mr Balogh also stated that the applicant was going through severe stress and anxiety as a result of being unlawfully, suddenly, and brutally terminated because she stood under her article 7 rights.
In summary, the applicant submitted that the reasons for the delay with the filing of her unfair dismissal claim involved the severe stress, anxiety, and associated mental torment arising from her dismissal which, when combined with difficulty in obtaining legal assistance or other guidance, meant that she was unable to file her unfair dismissal claim within the 21 day period following her dismissal. The applicant submitted that her unfair dismissal claim should be accepted based on exceptional circumstances.
The Employer’s Case in Opposition to an Extension of Time
The employer provided evidence by way of a witness statement of Mr Julian Oliveux dated 20 June 2022. The evidence provided by Mr Oliveux set out the chronology of relevant events and communications between inter alia, the applicant and the employer leading up to and following the termination of the applicant’s employment. The evidence of relevant events particularly relating to communications and other activities undertaken by the applicant in the period immediately following her dismissal and up until the time at which she lodged her unfair dismissal claim, were not matters of any significant factual contest.
The submissions provided on behalf of the employer asserted that the applicant had failed to demonstrate that there were exceptional circumstances which would provide for an extension of time. In particular it was asserted that, taking into account the matters set out in subsection 394 (3) of the Act, the Commission should decline to exercise the discretion to grant an extension of time.
The submissions made by the employer firstly set out the factual background associated with the employer’s decision to promulgate a policy that required all its employees to have received two doses of an approved COVID-19 vaccine, subject to certain exceptions including medical grounds (COVID-19 Policy). The submissions then detailed the particular communications that transacted between the applicant and the employer in respect of the applicant’s non-compliance with the COVID-19 Policy. These communications included the advice of termination of employment dated 3 February 2022, and the subsequent communications which occurred in the period following dismissal up until the late lodgement of the unfair dismissal claim on 11 March 2022.
The employer’s further submissions addressed the various factors set out in subsection 394 (3) of the Act. In respect to the reason for the delay, the employer submitted that although the applicant may have been shocked and distressed by her dismissal, these aspects of some medical condition could not, in the absence of any medical evidence, be a basis for a finding of exceptional circumstances. The employer submitted that there was no medical evidence of a diagnosis which demonstrated that the applicant was suffering from a health condition which in some way incapacitated her or rendered her incapable of preparing and filing an unfair dismissal application. The employer submitted that evidence of the applicant providing other communications both to her former colleagues and to the employer, demonstrated that she would have had the capacity to file an unfair dismissal claim within the 21 day period following dismissal.
The submissions made by the employer noted that the applicant received notice of her dismissal and thus became aware of the dismissal when it took effect, on 3 February 2022. Further, the employer submitted that despite the applicant communicating with the employer on 21 February 2022, raising concerns about the circumstances surrounding her dismissal, she took no further steps to dispute the dismissal at that time.
The employer made submissions which acknowledged that it would not suffer significant prejudice other than the costs and time involved in defending the claim.
The further submissions made by the employer asserted that the applicant’s case did not have strong merit. In this regard, the employer submitted that it had consulted extensively in respect of the implementation of the COVID-19 Policy, and it was clear that the applicant had made a conscious decision not to comply with what the employer asserted to be a lawful and reasonable direction. The employer asserted that the applicant’s case lacked merit, and this should weigh against the grant of an extension of time. The employer also submitted that it had dismissed other employees for non-compliance with the COVID-19 Policy, and these individuals could be considered to be in a similar position to the applicant.
In summary, the submissions made by the employer asserted that the Commission should not exercise the discretion to grant an extension of time because the applicant had failed to demonstrate exceptional circumstances. The employer submitted that the applicant had not provided any evidence upon which to establish that she was unable to lodge an unfair dismissal application within the 21 day time frame. The employer submitted that other relevant factors did not provide support for any finding of exceptional circumstances. The employer urged the Commission not to exercise the discretion to extend time, and instead dismiss the application.
Consideration
Subsection 394 (2) (a) of the Act stipulates that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) allows for an extension of the 21 day time period if, pursuant to subsection 394 (3), exceptional circumstances are established.
In this case, the application was filed on 11 March 2022, which was some 36 days after the day on which the applicant’s dismissal took effect, 3 February 2022. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 15 days after the expiry of the 21 day time limit.
Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) of the Act is in the following terms:
“(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.”
As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.
Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.
Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.
In this case the delay was 15 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 15 days in the context of a 21 day time limit, represented a significant delay in the context of the statutorily prescribed time limit.
Subsection 394 (3) (a) - The Reason for the Delay
In this instance, the reasons for the delay that were advanced by the applicant involved firstly, her anxiety and stress which was asserted to render her incapable of making the application, and secondly, the applicant placed reliance upon the asserted difficulty of obtaining legal or other advice and/or guidance.
Dismissal from employment will usually create some level of anxiety and stress for the dismissed employee. The level of anxiety and anguish associated with dismissal can naturally be heightened if advice of dismissal is provided by email, text, or other electronic communication. Ordinarily, the message of dismissal should be communicated personally, that is by way of face-to-face contact with arrangements for the presence of a support person and the provision of documentary confirmation. In this instance, where the applicant had been absent from work and engaged in communications with the employer regarding her non-compliance with the COVID-19 Policy, the dismissal could not have been entirely unpredictable.
Nevertheless, the applicant would have been understandably upset when she received the email advice of her dismissal. There are instances where the level of mental anguish associated with dismissal from employment can cause the dismissed employee to be incapable of making an unfair dismissal claim. If such incapacity is asserted as providing reason for any delay with the making of an unfair dismissal claim, such incapacity would need to be verified with the provision of evidence in the form of a certificate or report from a duly qualified medical professional. The applicant has not provided any evidence from an appropriately qualified medical professional to support her assertion that she was somehow incapacitated such that she could not have completed the application for an unfair dismissal remedy (Form F2) any earlier than 36 days after her dismissal.
In addition to the absence of any evidence from a qualified medical professional to support the applicant’s alleged incapacity, there was evidence that confirmed that the applicant had capacity to provide communications to both her former colleagues and the employer within the 21 day period following her dismissal. The email communication that the applicant arranged to be provided to her former colleagues on 16 February 2022, and the email communication from the applicant to the employer on 21 February 2022, have provided compelling basis to conclude that the applicant was not incapable of completing the Form F2 within the 21 day time period after her dismissal.
In respect to the further reason that the applicant asserted for the delay in filing the unfair dismissal claim, once again, there was no evidence upon which to establish that the applicant had made unsuccessful attempts to engage legal assistance or other guidance. In any event, it is simply not necessary to have legal or other assistance/guidance in order to complete the Form F2.
The evidence found in the applicant’s communications with her former colleagues and the employer has revealed that although the applicant was aggrieved by the circumstances surrounding her dismissal, she initially accepted that, “being terminated was because of the choice I made this was the right decision for me 100%.”[5] And “Obviously for me as one door closes another one opens and right now I am excited for my future away from TAFE.”[6] It appeared that the applicant’s excitement for her future away from TAFE NSW was not sustained. However, unfortunately for the applicant, her change of mind materialised after the 21 day time limit for making an unfair dismissal claim has elapsed.
In simple terms, if the applicant could construct and provide email communications to her former colleagues and the employer which included expansive commentary regarding aspects of her dismissal, then, in the absence of any evidence confirming any medical incapacity, there was simply no discernible reason as to why she could not have completed and filed a Form F2 at around the same time. Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound or acceptable reason upon which to establish that the applicant acted with an appropriate level of diligence and genuine regard for undertaking challenge to her dismissal.
Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect
The applicant first became aware of her dismissal on 3 February 2022, when she was sent an email with the attached letter of dismissal. Therefore, the applicant first became aware of her dismissal on the date that it took effect, 3 February 2022, and this factor does not provide any assistance to the applicant.
Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal
The applicant’s email communication that was sent to the employer on 21 February 2022, did raise dispute about the alleged discriminatory approach of the employer in respect of dismissal of employees who were apparently non-compliant with the COVID-19 Policy. However, this email communication did not directly challenge the basis for the applicant’s dismissal but rather sought explanation for why there had not been more dismissals implemented. Relevantly, this email communication presented inter alia, the following question to the employer: “Why is it 3 weeks after the 31st January you still have not terminated all staff that are not fully vaccinated as per the requirements of TAFE NSW.”[7]
Consequently, the action taken by the applicant in the form of the email to the employer on 21 February 2022, did not raise dispute about her dismissal per se but instead, raised challenge to the employer’s broader approach to dismissal of others who were apparently non-compliant with the COVID-19 Policy. Therefore, on balance, this factor has provided only limited assistance to the applicant.
Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)
The employer accepted that there was no basis upon which to establish that it would suffer any significant prejudice if the extension of time that was sought by the applicant was granted. Therefore this factor has operated to provide some assistance to the applicant.
Subsection 394 (3) (e) - The Merits of the Application
This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.
It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, in this instance it was relevant to note that the applicant sought to challenge her dismissal on the basis that it “was inherently unfair because my employer introduced a policy which was unreasonable and unlawful; and the application and delivery of the Policy was not transparent and did not include a genuine consultation.”[8]
The applicant’s challenge to her dismissal appeared to involve something of a “change of heart” in respect to what seemed to be her initial acceptance that her dismissal was the consequence of her choice to not be part of the experimental vaccine and for which she was proud. There have been numerous Decisions in unfair dismissal claims that have sought to challenge the legality and/or legitimacy of policies introduced by employers in response to the COVID-19 pandemic. Overwhelmingly these unfair dismissal claims have been unsuccessful,[9] and challenge to employer mandated COVID-19 policies and other measures have had only limited success in circumstances where relevant consultation requirements were not followed. In this instance, the employer asserted that the applicant’s claim did not have sufficient merit and it pointed to evidence of extensive consultations with Unions and employees prior to the promulgation of the COVID-19 Policy.
On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with very limited prospects for success. Therefore consideration of this factor would provide little support for the granting of an extension of time.
Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position
The employer submitted that it would provide evidence to support the proposition that if the matter was allowed to proceed it would be unfair to other former employees who were in a similar position to the applicant and who have been precluded from filing and pursuing unfair dismissal applications. In the circumstances, the Commission has not been persuaded that this factor should operate in a manner as was proposed by the employer and consequently, this factor has been treated as being neutral.
Exceptional Circumstances
Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[10]. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.
Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in CheyneLeanne Nulty v Blue Star Group Pty Ltd[11]and the following paragraph from that Decision is particularly helpful:
“[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.”
Conclusion
In this instance the exercise of the discretion to extend time has been considered in respect to a delay of 15 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.
The reasons for the delay have included the issue of the applicant’s anxiety and stress which was asserted to have rendered her incapable of making the application within time. Additionally, the applicant placed reliance upon the assertion that she had difficulty with obtaining legal or other advice and/or guidance in respect of her dismissal. Importantly, the applicant did not provide supporting evidence in the form of a report or certificate from a duly qualified medical professional. Following careful analysis of the matters raised by the applicant, there has not been a satisfactory reason provided for the delay between dismissal and the filing of the unfair dismissal claim.
The other factors under consideration either did not provide strong assistance to the applicant’s claim for the Commission to exercise the discretion to extend time or were of neutral impact. Further, on any reasonable and objective assessment, the application had very limited potential merits.
The Commission has carefully evaluated and balanced all of the factors that are relevant to the determination of the out of time objection. In particular, in this instance there was not an acceptable reason for the delay in filing the application. On balance and having particular regard for the absence of any satisfactory reason for the delay in the entire period after dismissal until the late filing of the application, the Commission has determined that exceptional circumstances have not been established in this instance. It is important in this instance to emphasise that any finding of exceptional circumstances must relate to the circumstances that caused the late lodgement of the application, rather than any exceptional circumstances that may have existed in respect to the COVID-19 pandemic, and the policies and measures taken by Governments, Government agencies, and employers, in response to that pandemic.
Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore there could be no sound and proper justification for the Commission to exercise the discretion to extend time.
An Order [PR746145] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.
COMMISSIONER
Appearances:
Mr D Balogh appeared for the applicant.
Mr J White of MinterEllison with Mr J Oliveux, Director of Workplace Relations from TAFE NSW appeared for the employer.
Hearing details:
2022.
Sydney.
July, 21.
[1] Exhibit 5 - Annexure M.
[2] Exhibit 5 - Annexure N.
[3] Exhibit 5 - Annexure O.
[4] Exhibit 3.
[5] Exhibit 5 - Annexure M.
[6] Exhibit 5 - Annexure M.
[7] Exhibit 5 - Annexure N.
[8] Form F2 - Question 3.2 @ paragraph 72.
[9] See, in particular, Eileen Owens v I-Med Radiology Ltd [2022] FWC 1823, Asbury DP @ paragraph [46].
[10] Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
[11] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
Printed by authority of the Commonwealth Government Printer
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