Mark Benito Della Casa Alberighi v EC Training Pty Ltd

[2021] FWC 4011

[2021] FWC 4011

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Mark Benito Della Casa Alberighi
v
EC Training Pty Ltd
(C2021/2933)

DEPUTY PRESIDENT BOYCE SYDNEY, 14 JULY 2021

Application to deal with contraventions involving dismissal – application filed out of time – medical evidence – circumstances not exceptional on the evidence provided – application dismissed.

Introduction

[1] On 24 May 2021, Mr Mark Benito Della Casa Alberighi (Applicant) filed an application concerning general protections involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by EC Training Pty Ltd (Respondent) for discriminatory reasons associated with his family / carer’s responsibilities.

[2] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow.

[3] The Applicant started his employment with the Respondent on 13 April 2021. There is no dispute that the Applicant was terminated on 29 April 2021. There is no dispute that the Applicant was made aware of his dismissal on 29 April 2021. The total period of the Applicant's employment with the Respondent was two weeks and two days. The Applicant was terminated during his probation period.

[4] Given that the Applicant filed his Application on 24 May 2021, it has been filed four days outside of the 21-day time limit. The Applicant should have filed his Application by 20 May 2021 (to be within the 21-day time period).

[5] At the hearing, the Applicant appeared for himself, and Mr Phillip Waldren, Managing Director, appeared for the Respondent.

Legal principles

[6] Section 366(2) of the Act 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.”

[7] 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 Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”,has 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 time limit in s.366(1)(a) is not an exceptional circumstance…” 1

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), 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) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 2

(emphasis added)

[8] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters 3:

“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

..

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.

…

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 4

Reason for delay 5

[9] 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.”

[10] In his Application, the Applicant asserts that he was dismissed for a discriminatory reason, being family/carer's responsibilities. 7 The Applicant says that his reason for delay is because of the impact that his dismissal has had upon his health, and his capacity (or lack thereof) to function normally. In his statement, the Applicant points out that:

“As a result of the unfair dismissal incident, I have suffered from the below which impacted my mental health capacity to submit the application for dismissal within the 21-day time frame. [These include] irritability, cognitive difficulty, depression, anxiety, inability to perform daily function, cancellation of ALL social engagements, sleeplessness, insomnia, suicidal ideation.” 8

[11] The Applicant goes on to state (relevantly):

“I was basically in shock, trauma and disbelief which has resulted in a complete incapacity to function during the lead up to my unfair dismissal application being lodged within the 21-day time frame. This is my reasoning as to the 3 days lateness of my application. I still continue to struggle with daily functionality since the incident including all over the outlined numbered points above. I have always worked full time over the last 25 years. I am currently seeking a mental health plan to access therapy as a result to assist me with returning to normal functionality that I had prior to this incident. This includes my sporting and social engagements.” 9

[12] In Bianco Mamo, Deputy President Easton outlined issues associated with mental illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:

“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.

[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.

[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.

[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21-day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”

[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”

[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.

[25] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

(iii) the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame (per Underwood and Merhi); and

(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).” 10

(footnotes omitted)

[13] I concur with and adopt the foregoing principles.

[14] In support of his asserted reasons for delay, the Applicant has provided a medical certificate dated 22 June 2021. Relevantly, his Doctor in that medical certificate states:

“I hereby certify that on 22 June 2021, I examined Mr Mark Alberighi who in my opinion is suffering from anxiety depression since April 2021.”

[15] In my view, the medical certificate is deficient in a number of respects. Firstly, it does not indicate when the Applicant first saw his doctor. Secondly, the medical certificate does not give an opinion about the Applicant's capacity to make an application to the Commission. Thirdly, it provides that the Applicant was seen on 22 June 2021, being over a month after he had filed his Application, and states a medical opinion which, with respect, seeks to retrospectively diagnose the Applicant as having been suffering from mental illness as far back as April 2021.

[16] Significantly, however, is the evidence provided by the Respondent, including the evidence as to the communications between the Applicant and Mr Phillip Waldren (of the Respondent), during and after the 21-day period within which the Applicant ought to have filed his Application. Relevantly, in that regard, I highlight (in summary form) that:

(a) on 29 April 2021, the day that the Applicant was dismissed, he engaged in some five different email communications with Mr Waldren;

(b) on 5 May 2021, some six days after he was dismissed, the Applicant sent a further email communication to Mr Waldren;

(c) on 21 May 2021, being one day outside of the 21-day time limit, he sent a further lengthy and detailed email to Mr Waldren; and

(d) on 24 May 2021, being the day he filed his Application, he sent a further email to Mr Waldren. 11

[17] Having regard to the foregoing email communications, I do not accept that the evidence discloses a reasonable or credible reason for the Applicant’s delay in filing his Application. Indeed, the Applicant’s principal argument centres upon his own assertions as to his state of mind (and mental illness) after his dismissal. However, as I have already stated, these assertions are not supported by the medical evidence relied upon by him.

[18] In my view, the Applicant’s reason/s for delay do not weigh in favour of a finding as to exceptional circumstances, or the grant of an extension of time.

Action taken by the Applicant to dispute his dismissal 12

[19] I note that the evidence discloses that the Applicant took various steps to dispute his dismissal with the Respondent on the day of his dismissal, and thereafter on various occasions prior to filing his Application (via emails to Mr Waldren). In my view, given that the Applicant disputed his dismissal on the very same day that it occurred, and thereafter, and communicated same in unambiguous terms to the Respondent (via email to Mr Waldren), this criterion is one which weighs against any finding as to exceptional circumstances.

Prejudice 13

[20] In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. I therefore treat this criterion as a neutral consideration. 14

Merits 15

[21] The principles stated Kyvelos v Champion Socks Pty Ltd 16 (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and 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 …”. 17

[22] The Applicant says that his dismissal was unlawful because it was for discriminatory reasons associated with his alleged family/carer's responsibilities.

[23] Mr Graham Perlin, Sales Manager of the Respondent, sets out a number of issues that he found of concern in relation to the Applicant over his short two-week period of employment. 18 These matters, in summary, include:

(a) the Applicant taking of a day off work to move to a new house (which Mr Perlin, as the Applicant's manager, says he was only advised of on the morning of the moving day (at around 8.30am on a working day));

(b) the Applicant’s repeated lateness or tardiness to work (i.e. being around 30 minutes late on the majority of the ten or so days that the Applicant presented for work over the period that he was employed by the Respondent);

(c) the Applicant’s failure or inability to meet KPIs;

(c) Mr Perlin calling the Applicant shortly after lunch one day, and the Applicant appearing to be (according to Mr Perlin) disoriented and confused on the phone, giving Mr Perlin the impression that the Applicant had just woken up for the day; and

(d) the Applicant failing to enter relevant information into the Respondent’s relationship management system (which was a core duty of the Applicant’s role). Further, the Applicant failing, or being unable, to produce any hard copy documentation as to the contact he had allegedly made with clients or potential clients (leading Mr Perlin to believe that the Applicant had not been doing his job, or functioning in his role).

[24] Mr Perlin says that he discussed the proposal to dismiss the Applicant due to the foregoing issues on 28 April 2021 with the Respondent’s management. Mr Perlin informed the Applicant of his dismissal on 29 April 2021. Mr Perlin states that the Applicant stated to him upon being informed of the dismissal, that he was being dismissed because Mr Perlin felt threatened by him (i.e. not because of his alleged family/carer’s responsibilities).

[25] Mr Perlin, in his evidence, rejects any assertion that the Applicant's family situation or caring responsibilities had anything to do with the Applicant's dismissal, and says that the Applicant's poor work attitude and underperformance were the basis upon which the Respondent determined to dismiss the Applicant during his probation period.

[26] For his part, the Applicant strongly disputes all of the matters that Mr Perlin asserts. He says that he was not late to work, he was easily meeting his KPIs, he was otherwise performing well in his job, and that any issues as to his tardiness for work were as a result of his family/caring responsibilities - which he was ultimately dismissed for.

[27] In these proceedings, based upon the evidence that has been tendered, I do not consider that I am in a position to make findings of fact on the contested issues between the parties. If the factual matters relied upon by the Respondent are true, and the denial of discriminatory reasons associated with the Applicant’s dismissal are accepted by a relevant court, it appears that the Applicant’s case is doomed to fail. Conversely, if the factual matters relied upon by the Respondent are not true, and the Applicant is able to prove that he was dismissed for an unlawful reason/s, he has some prospects of success. All in all, given I am not in a position to make findings of fact, and having regard to the reasoning set out in Kyvelos, I consider the merits of the Application to be a neutral consideration in this matter. The merits of the Application in this matter certainly do not shed any favourable light upon the Applicant’s late lodgement.

Fairness as between the Applicant and other persons in a similar position 19

[28] I am required to consider fairness as between the Applicant and other persons in a similar position. There were no submissions made as to this criterion, and I am not otherwise aware of any person in a similar position to the Applicant in the employ of the Respondent. I therefore treat this criterion as a neutral consideration.

Conclusion

[29] I have taken into account and considered individually and collectively the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and three criteria are neutral).

[30] On the basis of my reasons set out in this decision and having regard to the evidence and the submissions of the parties, I am not satisfied there are exceptional circumstances in this case. Because I am not so satisfied, there is no basis at law for me to grant an extension of time for the Applicant to file his Application. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 24 May 2021 is dismissed by way of Order [PR731489]. 20

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731515>

 1   [2011] FWAFB 975.

 2   Ibid.

 3   [2018] FWCFB 901.

 4   Ibid, at [17], [19], [38]-[39].

 5   Section 366(2)(a).

 6   [2021] FWC 3903.

 7 See s.351 of the Fair Work Act 2009.

 8   Applicant’s submissions filed 6 July 2021.

 9   Ibid.

 10   [2021] FWC 3903, at ]19]-[25]. Whilst this reasoning concerned an out of time unfair dismissal claim, there is no basis to suggest that the same reasoning and principles do not apply to an out of time general protections involving dismissal claim.

 11   Respondent’s submissions filed 7 July 2021.

 12   Section 366(2)(b)

 13   Section 366(2)(c).

 14   Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38]).

 15   Section 366(2)(d).

 16 (1995) 67 IR 298.

 17   Ibid at 299 to 300.

 18   Statement of Mr Graham Perlin dated 4 June 2021, attached to Form F8A response provided by the Respondent.

 19   Section 366(2)(e).

 20   This decision was originally made on an ex-tempore basis on transcript. In making my decision on transcript, I reserved the right to subsequently add to or amend my ex-tempore decision when publishing my reasons for decision. I have done so accordingly.