Mr Adam Taprell v IRROD Pty Ltd
[2025] FWC 610
•28 FEBRUARY 2025
| [2025] FWC 610 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam Taprell
v
IRROD Pty Ltd
(U2025/685)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 28 FEBRUARY 2025 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application (Application) made by Mr Adam Taprell (Applicant) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The Applicant, who was employed by IRROD Pty Ltd (Respondent), alleges he was dismissed on 24 December 2024. The Application was lodged on 21 January 2025. The Respondent raises two jurisdictional objections in its Form F3. Firstly, the Application was not made within the 21-day statutory period required by s 394(2)(a) of the Act and secondly, the dismissal was a genuine redundancy. This decision deals solely with the Respondent’s first jurisdictional objection.
Section 394(2) of the Act states an application for unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect; or within such further period as the Fair Work Commission (Commission) allows…’. The period of 21 days after the alleged dismissal ended at midnight on 14 January 2025. The Application was filed 7 days outside the 21-day period. The Applicant requests the Commission grant a further period for the Application to be made under s 394(3) of the Act.
The Application was listed for a Determinative Conference/Hearing (the Hearing) on 27 February 2025 to determine whether an extension of time to file the Application should be granted. In advance of the Hearing, the parties filed material in accordance with directions issued. The Applicant was represented by his wife Ms Tanya Maree, while the Respondent was represented by the Respondent’s owner, Ms Glenyce Green.
Background and evidence
The Applicant commenced employment as a baker with the Respondent on 31 May 2022 and states in his Form F2 that he became aware on 27 November 2024 that his employment would cease on 24 December 2024.[1] The Applicant alleges he was dismissed due to a workplace injury sustained in May 2024 which he says impacted his mental health, led to him seeking psychological treatment and also impacted his ability to file the Application within the 21-day statutory time period. The Applicant filed medical evidence, which is detailed below, in support of his claim that the state of his mental health delayed the filing of the Application.
A certificate of capacity[2] was issued on 2 December 2024 (the Certificate of Capacity) by Dr Swathi Soman Choyi which stated the Applicant had affected ‘mental health function’ and that his attention/concentration, memory, and judgement were impaired. The Certificate of Capacity also stated the Applicant had no capacity for any employment from 2-30 December 2024.
An independent medical examination report[3] (IME Report) dated 4 January 2025, was prepared by Dr Ajit Kumar following a telehealth examination of the Applicant conducted on 3 January 2025. The IME Report states the Applicant had been seeing his GP regularly since sustaining a workplace injury in May 2024 as well as seeing a psychologist through WorkCover from July 2024 onwards on a fortnightly basis. The IME Report provides a diagnosis of the Applicant that he was suffering from a ‘generalised anxiety disorder,’ had significant behavioural, cognitive or psychological dysfunction and that his presentation (as of 3 January 2025) was an aggravation of a pre-existing condition. Dr Kumar went on to state in the IME Report that the Applicant had ‘current work capacity for his pre-injury duties on reduced hours at a different workplace.’
In response to questioning on the IME Report, the Applicant agreed that it stated he was capable of performing his pre-injury duties. When asked to reconcile that work capacity with his claimed inability to file the Application prior to 21 January 2024, he simply responded that he was still not coping. When further questioned as to what changed between 3 January 2025 and the 21 January 2025 such that he was able to file his application, the Applicant responded that time and his attendance at sessions with his psychologist helped. He also confirmed that he had appointments with a psychologist on 9 January 2025 and 30 January 2025.
Dr Lakmal De Silva of Ballarat Doctors states he has been the Applicant’s GP for more than 2 years. Dr De Silva provided a Witness Statement[4] including a ‘recommendation’ dated 13 February 2025 and relevantly stated:
“…
In recent consultations, review of the medical certificate issued by Dr Swathi Choyi on the 2nd December 2024 and the Independent Medical Assessment (IMA) by Dr Ajit Kumar on the 6 January 2025, with my knowledge and observations of the evidence and examination of Adam’s mental health, I conclude Adam did not have the capacity to submit the unfair dismissal case until the 21 January 2025.
…”
When questioned on Dr De Silva’s statement and ‘recommendation’, the Applicant confirmed that he had an appointment with him on 12 February 2025. That was his first appointment with his GP in 2025 as Dr De Silva was away on leave prior to that date.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5] Exceptional circumstances may 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 can be considered exceptional.[6]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
The Application needed to have been made by midnight on 14 January 2025 to be within the 21-day filing period. The delay is the period commencing immediately after that time until 21 January 2025, although circumstances arising prior to 14 January 2025 may be relevant to the reason for the delay.[7]
The reason for the delay is not required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An applicant does not need to provide a reason for the entire period of the delay, however, the absence of explanation for any part of the delay usually weighs against an applicant in assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay usually weighs in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[9]
The Applicant explained the delay in filing the Application was due to his mental health capacity. He relies on medical evidence in the form of a witness statement from Dr De Silva, the Certificate of Capacity, and the IME Report from Dr Kumar. The first thing to be said is none of the medical practitioners that provided medical certificates or reports were called to give evidence and, as such, were not available to be cross-examined. This did not assist the Commission. Nor did any of the medical evidence specifically deal with whether the Applicant’s mental health was so impaired as to have prevented his completion and filing of the Application prior to 21 January 2025.
In dealing with the medical evidence, I am guided by the comments of the Full Bench in Weir v Hydro-Chem Pty Ltd[10] (Weir). That decision stands as authority for the proposition that the mere fact that an individual has been declared by a medical practitioner to be suffering from a particular condition does not mean the person is necessarily incapable of filing an application within the statutory time period and that each case will turn on its own facts and the medical information available. Weir was a decision dealing with an appeal of an earlier decision of Deputy President Lawrence in which the Deputy President had declined to grant an extension of time to an individual who had made a general protections application. Relevantly, Mr Weir had been diagnosed with an adjustment disorder and had provided medical evidence in the first instance proceedings. In considering the relevance of the medical evidence for the purposes of the appeal, the Full Bench said as follows;
“[36] Individuals suffering with Adjustment Disorder with depressed and anxious moods will have varying degrees of capacity to undertake daily tasks, work obligations, family commitments and the like. We reject Mr Weir’s submission that adherence to the statutory time limit is unrealistic for each person who suffers from the condition. Each case will turn on its own facts and the medical information available for consideration.
[37] Mr Weir is correct that the Commission must have regard for the medical opinion of a person’s practitioner. It is not correct, however, to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition it renders the person incapable of completing and lodging an application under the FW Act in the required time. It is a relevant consideration to be taken into account by the member of the Commission hearing the application for an extension of time together with all the other available information before the member.”[11]
Turning to the medical information available in the present matter, the Certificate of Capacity covered the period from 2 to 30 December 2024 and says nothing about the Applicant’s capacity after that date. That said, it may be accepted based on the Certificate of Capacity that up until 30 December 2024, the Applicant was unable to perform any work because of the state of his mental health. Despite the absence of specific detail going to the Applicant’s cognitive capacity to complete forms, I am prepared to accept that the Applicant’s mental health is likely to have also impacted his ability to prepare and file the Application prior to 30 December 2024.
The IME Report, while it provides no real insight into the capacity of the Applicant to prepare and file the Application, does state that the Applicant as of 3 January 2024 was able to undertake his pre-injury duties on reduced hours with a different employer. This stands in contrast to the Certificate of Capacity which covered the period up to 30 December 2024. While the IME Report also states that the Applicant had ‘behavioural, cognitive or psychological dysfunction’ at the time of assessment, that dysfunction was clearly not such as to prevent the Applicant undertaking his pre-injury duties. From this assessed capacity to undertake his pre-injury duties I discern that the Applicant had an increased capacity to prepare and file the Application from at least 3 January 2025 onwards.
Turning finally to Dr De Silva’s ‘recommendation,’ I note that it was prepared on 13 February 2025 following a consult with the Applicant on 12 February 2025. I do not in these circumstances regard Dr De Silva’s ‘recommendation’ as providing an assessment of the Applicant at the relevant time. Dr De Silva places weight on the Certificate of Capacity even though it expired on 30 December 2024, and also on the IME Report as evidencing the Applicant’s lack of capacity to prepare and file the Application prior to 21 January 2025. Dr De Silva’s conclusion that the Applicant was unable to file his application prior to 21 January 2025 stands in contrast to Dr Kumar’s more contemporaneous assessment made on 3 January 2025 that the Applicant was fit to resume his pre-injury duties with another employer.
It is difficult on the basis of the IME Report to reconcile the Applicant’s assessed capacity to return to pre-injury duties as of 3 January 2025 with an inability to prepare and file the Application at an earlier time than 21 January 2025 as contended by Dr De Silva. Finally, there is nothing in Dr De Silva’s recommendation or in the IME Report which explains what changed in terms of the Applicant’s capacity between the 14 January 2025 and 21 January 2025, when the Applicant filed the Application. Given the apparent conflict between Dr De Silva’s opinion and the IME Report, I prefer the IME Report. It is more contemporaneous and makes a series of detailed observations and findings based on Dr Kumar’s 3 January 2025 assessment of the Applicant. In contrast, Dr De Silva’s ‘recommendation’ provides little detail, and was not based on an assessment of the Applicant at the relevant time between his dismissal on 24 December 2024 and 14 January 2025 when the 21-day filing period ended. As Dr De Silva was not called to give evidence and clarify this apparent tension I give De Silva’s ‘recommendation’ little weight.
It follows from the foregoing that I accept on the basis of the medical evidence before me that the Applicant’s ability to prepare and file the Application was significantly compromised up to 30 December 2024. The condition of his mental health therefore explains that part of the delay between 24 & 30 December 2024. Beyond that period, I am not satisfied that the Applicant’s mental health was so compromised that he was unable to prepare and file his application at an earlier time than 21 January 2025. The state of the Applicant’s mental health while explaining some of the delay does not explain the delay in filing the Application after 30 December 2024. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I find the Applicant became aware on 27 November 2024 of his dismissal which took effect on 24 December 2024. He therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 24 December 2024, other than lodging the Application. This weighs against a finding of exceptional circumstances.
Prejudice to the employer
The Application was filed 7 days outside of the 21-day period. The Respondent did not contend that it would suffer prejudice except for the ordinary prejudice of pressing its jurisdictional objection. In these circumstances I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[12] it said:
“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.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[13] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant submits that contrary to the reasons given for his dismissal by the Respondent, he saw no evidence of financial constraints on the business and no impact on production or order requests that compelled the Respondent to make his position redundant. He also claims he was aware of former employees also having been being dismissed for the same ‘financial’ reasons and that the owner of the business had admitted to previously using this excuse to dismiss employees. The Applicant further contends that he was not warned regarding his conduct before he was dismissed and that the real reason for his dismissal was the workplace injury he sustained in May 2024.
The Respondent rejects the Applicant’s claims and maintains that the Applicant was dismissed on the grounds of genuine redundancy. The Respondent refers to falling sales, that the Applicant was engaged for night shift which he was no longer able to perform and there was not enough dayshift work to sustain his position. The Respondent also submits that the remaining bakers have absorbed the Applicant’s duties, and that no new staff have been engaged to cover the Applicant’s former role.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. In these circumstances the merits of the case do not tell for or against an extension of time although I do note that if I were to grant an extension of time the further jurisdictional objection raised by the Respondent would need to be dealt with.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the required matters under s 394(3), and all of the matters raised by the Applicant outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Tanya Maree for the Applicant.
Glenyce Green for the Respondent.
Hearing details:
2025.
Melbourne:
February 27.
[1] Exhibit A4, Letter of Termination
[2] Exhibit A2, Certificate of Capacity, dated 2 December 2024
[3] Exhibit A3, Independent Medical Examination Report, dated 4 January 2025
[4] Exhibit A1,
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[6] Ibid.
[7] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[9] Ibid at [40].
[10] [2017] FWCFB 758
[11] Ibid at [36]-[37]
[12] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[13] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].
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