Mr Erik Hansen v Star Track Auspost
[2025] FWC 641
•4 MARCH 2025
| [2025] FWC 641 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Erik Hansen
v
Star Track Auspost
(C2025/116)
| COMMISSIONER PLATT | ADELAIDE, 4 MARCH 2025 |
Application to deal with contraventions involving dismissal – request for an extension of time – no exceptional circumstances – application dismissed
On 8 January 2025, Mr Erik Hansen (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging his employment was terminated by Star Track Auspost (the Respondent) which allegedly occurred on 4 October 2024 in contravention of the general protections provisions of the Act.
The Act provides that an application alleging contravention of general protections made pursuant to s.365 of the Act must be made 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.
In his Form F8, 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:
“The form may be late. Why is it being lodged late?
It has been hard to find a representative and have not found permanent employment since my dismissal. I also have used other methods of moving on from this, though however this has proven difficult as I believed it's caused an impact on other important parts of life and there was a lengthy process of inquest in why I was faced with
allegations for reason facing termination, I gave as stronger explanation as I could and highly valid reason on why I believe this job was important and should not be dismissed, however HR still did not did view my reasons suffient enough to satisfied with.”On 4 February 2025, the Respondent lodged a Form F8A Employer Response which raised a jurisdictional objection that the application was lodged out-of-time.
On 7 February 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 4 March 2025 in respect of the extension of time issue and provided Directions for the filing of material.
The Applicant filed a submission/statement and supporting material in respect of the extension of time jurisdictional objection made by the Respondent.
The Respondent filed submissions only.
The Hearing was conducted via telephone at 12:00pm (SA) Tuesday, 4 March 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Ms Jenni Mandel.
The relevant evidence is summarised below:
On 26 September 2024, the Applicant was terminated for serious misconduct and was provided with a termination letter on the same day.
The termination letter suggests the Applicant’s conduct breached the Respondent’s policies in relation to Minimum Standards of Respectful Behaviour and Ethics.
The Applicant was aware of his dismissal on the day on it occurred, which was effective close of business 26 September 2024.
On 8 January 2025, the Applicant lodged his general protections application.
To explain the delay, the Applicant submits he was angry as a result of his termination, had poor mental from depression, had difficulties finding a representative and attended regular therapy sessions.
- On 20 February 2025, the Applicant provided a medical letter from Dr Monjur Siddiqui dated 16 February 2025, which suggests the Applicant was ‘social[ly] withdrawn with depression.’ The Applicant did not call Dr Siddiqui to provide evidence as to how the Applicant’s condition was greater than the normal impact of a dismissal and how it contributed to the late lodgement of the application.
- At the Hearing, Mr Hansen submitted a letter dated 4 March 2025 which indicated that the Applicant had a diagnosis of autism which affects his capacity for verbal and nonverbal communication, and understanding and management of his emotions. Despite the late lodgement of this material, I accepted the letter. I note that the author was not called to explain how this diagnosis contributed to the late lodgement of the application.
Applicable Law
Section 366(2) of the Act states:
“Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[1]
I have considered the provisions of s.366(2) 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
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 v Lenswood 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 the reason for the delay in accordance with s.366(2) 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.”
Despite the Applicant alleging his date of dismissal was 4 October 2024 in his Form F8, it does not appear in dispute that the Applicant’s employment was terminated on 26 September 2024.
Therefore, his application is 83 days out-of-time and can only be pursued if this time limit is extended.
Paragraph 366(2)(a) - reason for the delay
In his submissions, the Applicant provides his reasons for the delay were “being angry with the termination,” “bad mental health” including “very bad depression”, and difficulty in “finding representation.”
On 20 February 2025, the Applicant provided a letter by Dr Monjur Siddiqui stating that Mr Hansen is “social[ly] withdrawn with depression” and suffered “despair of not gaining new permanent employment.”
At the Hearing, the Applicant submitted a letter dated 4 March 2025 which indicated that the Applicant had a diagnosis of autism which affects his capacity for verbal and nonverbal communication, and understanding and management of his emotions.
The Respondent submits the Applicant has not provided evidence demonstrating how his mental health issues led to filing his application late.
In the absence of the authors of the medical reports, I am unable to determine how the Applicant’s mental state led to a delay in filing, as he has not led any evidence on how his mental health impacted his capacity to lodge his application within the statutory timeframe.[6]
The medical evidence suggests the Applicant ‘mention[ed]’ he had depression to his doctor which is not inducive of a psychological assessment or diagnosis.[7] The letter dated 16 February 2025, submitted 114 days after the statutory time limit had expired, also provides no probative value on how the Applicant’s state of mind led to a delay in filing. The diagnosis of autism is not disputed by the Respondent.
In response to a delay in filing being failure to find representation, the Commission does not require parties to be represented in order to file a general protections application
Having considered all of Mr Hansen’s reasons for delay, none of the reasons relied upon (individually or collectively) are out of the ordinary course or exceptional.
This consideration does not support a finding of exceptional circumstances.
Paragraph 366(2)(b) – 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.[8]
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 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
The Respondent submits there is prejudice to the additional time and resources to defend the application. I am not persuaded that any prejudice would have been greater than if the claim had been filed on time. Prejudice is a neutral consideration.
Paragraph 366(2)(d) - 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 366(2)(e) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[11] 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.366(2)(a)-(e), I am not persuaded that there are exceptional circumstances so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application is dismissed, 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] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435, [16]
[7] Ibid.
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[9] Ibid.
[10] Ibid.
[11] [2016] FWCFB 6963.
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