Mr Callum Lawson v Trustee for Pod Dietetics Trading Trust
[2024] FWC 2560
•21 OCTOBER 2024
| [2024] FWC 2560 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Callum Lawson
v
Trustee For Pod Dietetics Trading Trust
(U2024/9461)
| COMMISSIONER PLATT | ADELAIDE, 21 OCTOBER 2024 |
Application for an unfair dismissal remedy – request for an extension of time – no exceptional circumstances – application dismissed
On 13 August 2024, Mr Callum Lawson (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the Trustee For Pod Dietetics Trading Trust (the Respondent) which occurred on 22 July 2024.
The Act provides that an Applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect, however, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.
This application appears to have been lodged 7 minutes beyond the time permitted via email.
In his Form F2, the Applicant identified the Application was made beyond the 21 days from the date of dismissal. The Applicant explained the reason for delay as follows:
“I could not get the Adobe sign to work, hence why it is 10 minutes late, sincerest apologies.”
On 28 August 2024, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 19 September 2024 in respect of the extension of time issue and provided Directions for the filing of material.
On 29 August 2024, the Respondent lodged a Form F3 Employer Response which raised two jurisdictional objections, the first being that the Application was made out of time, the second being compliance with the Small Business Fair Dismissal Code.
This Decision deals with the extension of time objection only.
The Applicant filed submissions, supporting documents and a witness statement from himself and Ms Amber Laing in respect of the extension of time jurisdictional objection made by the Respondent.
The Respondent filed submissions and a witness statement of Ms Natalie Mullins.
The Hearing was conducted via telephone at 2:00pm (SA) Thursday, 19 September 2024 and 2:00pm (SA) Friday, 4 October 2024. Both occasions were recorded. The Applicant represented himself, the Respondent was represented by Ms Margaret Kaukas, with permission granted pursuant to s.596(2)(a) on the basis of complexity and efficiency, the Hearing was conducted as a Determinative Conference to mitigate the granting of permission.
The Applicant provided a letter from Ms Read (Organisational Psychologist) dated 2 July 2024, which discussed the Applicant’s ADHD, Complex PTSD, Depression, and Sleep Disorder. The letter appears to have been provided prior to the dismissal in response to the Applicant’s performance management.
At the 19 September 2024 Hearing the Applicant was invited to call Ms Read to give evidence on how the Applicant’s medical conditions (namely ADHD, Complex PTSD, Depression, and Sleep Disorder) impacted his capacity to file the Form F2 Application on time. The matter was adjourned to 4 October 2024 to allow that to occur.
Ms Read attended the Hearing on 4 October 2024. Her evidence is summarised as follows:
· Ms Read was not responsible for the making of the diagnosis of ADHD, Complex PTSD, Depression, and Sleep Disorder. Ms Read said her observations of the Applicant were consistent of a diagnosis of that nature and said the Applicant also displayed symptoms of autism (not formally diagnosed).
· Ms Read considered that 21 days would have been sufficient for the Applicant to complete his Form F2 Application, however the Applicant’s decision to delay the completion of the documentation contributed to his failing to meet the deadline.
· The Applicant was aware of his conditions (ADHD, Complex PTSD, Depression, and Sleep Disorder) and their impact on his ability to meet deadlines.
The Applicant’s relevant evidence is summarised below:
· The Applicant was dismissed on 22 July 2024 and was aware of the dismissal on the day it occurred.
· Written confirmation of the dismissal was provided on 23 July 2024. The termination letter suggests the Applicant’s employment was terminated due to a failure to meet the requirements of the role as set out in the Respondent’s Performance Improvement Plan.
· From 22 July 20234 to 30 July 2024, the Applicant went through a significant period of emotional processing. The Applicant submitted his ADHD, depression and anxiety prevented him from taking any action to dispute the dismissal during this time.
· The Applicant sought legal advice and following a telephone conversation with Fair Work Lawyers on 6 August 2024, understood that a Form F2 needed to be completed and was aware of the 21-day time limit to file the unfair dismissal application.
· On 8 August 2024, the Applicant had an appointment with the Equal Opportunity Legal Advice Service.
· On 9 August 2024, the Applicant met with his ADHD coach who assisted with strategies to manage the workload (presumably preparing the Form F2) by ‘scaffolding’ the necessary information.
· From 9 August 2024 to 12 August 2024 the Applicant started completing his Form F2 application and supporting material. At or around 3:00pm on 12 August 2024, the Applicant telephoned the Fair Work Commission seeking guidance on how the Form F2 should be written.
· The last day to file the application was 12 August 2024. The Applicant made a conscious decision to wait until 11:50pm on 12 August 2024 to file the application.
· Due to technological difficulties (no access to internet via his partner’s hotspot) and symptoms of ADHD, difficulty with task initiation and maintenance of focus, the Applicant filed his application 7 minutes late.
· Ms Laing submits the technological difficulty the Applicant experienced was caused by her turning off her mobile hotspot (at 10:30pm), which the Applicant relied upon for internet connection.
· The Commission’s records indicate the Application was lodged via email at 12:07am on 13 August 2024.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[1]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[3] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[5]
“[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.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
It is not in dispute that the Applicant was dismissed from his employment on 22 July 2024 and that he was aware on that day. The last day to file his application in time was 12 August 2024. The application was lodged at 12:07am on 13 August 2024. The delay is short.
The Applicant suggests the delay was caused by not having access to internet when he decided to lodge his application at 11:50pm on 12 August 2024. The Applicant also suggests his ADHD, depression and anxiety prevented him from filing the application at an earlier time and or date.
I am not persuaded that the Applicant’s medical condition prevented the completion of an unfair dismissal application. The Applicant was aware of the impact of his condition on meeting deadlines and appears to have ignored this. The Applicant’s medical provider indicated that 21 days should have been sufficient for him to prepare his application. The Applicant has received legal advice and coaching in respect to the lodgement of his claim about 6 days before the deadline. I am not persuaded that the Applicant has provided credible reasons for the delay. It appears to me that the Applicant deliberately left lodgement to the last minute and accepted the risk accompanied by this approach. I am not persuaded that his medical condition was a significant contributor. This factor weighs against of the granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
The Applicant appears to have been aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[6]
There is no evidence that the Applicant took any action to contest the dismissal other than the lodgement of the application.
This factor is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[7] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[8]
The Respondent submits there is no prejudice caused by the delay. Accordingly, prejudice is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[9] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
There is insufficient information to satisfy me the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As a result, it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant, and I so order.
COMMISSIONER
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[4] [2016] FWCFB 349.
[5] [2018] FWCFB 3288 at [35]-[45].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[7] Ibid.
[8] Ibid.
[9] [2016] FWCFB 6963.
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