Mr Grant Curtis Gallagher v Andrew Engineering (Aust) Pty Ltd
[2024] FWC 1715
•28 JUNE 2024
| [2024] FWC 1715 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mr Grant Curtis Gallagher
v
Andrew Engineering (Aust) Pty Ltd
(C2024/378)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 28 JUNE 2024 |
Application to deal with contraventions involving dismissal – extension of time.
Mr Grant Curtis Gallagher made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal.
An application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.[1] Mr Gallagher’s application was made 12 days outside the 21 day time limit.
This decision determines whether an extension of time should be granted. For the reasons set out below, I have decided that I am not satisfied there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act.
Legislation
Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are “exceptional circumstances”.
Exceptional circumstances are “out of the ordinary course, unusual, special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2] The requirement that there be “exceptional circumstances” establishes a “high hurdle” for the Applicant.[3] The longer an Applicant delays making an application the more difficult it will generally be to overcome that hurdle. [4]
In deciding whether there are exceptional circumstances to extend time, I must consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Mr Gallagher’s application for an extension of time is set out below.
Reason for the delay –s.366(2)(a)
Mr Gallagher must provide an acceptable or reasonable explanation for the delay.[6] If he is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if he fails to provide a credible explanation for any part of the delay, this will tend to weigh against a finding of exceptional circumstances.[7] The period of delay that requires an explanation is the period commencing immediately after the expiry of the 21 days to the time the application was lodged.
Mr Gallagher’s reason for the delay in making his application was due to a mental health injury he allegedly suffered when he returned to work after taking parental leave. In support of his application, Mr Gallagher relies on a statement he made on 25 October 2023 by telephone to an investigator during the assessment of his worker’s compensation claim which was subsequently rejected on 13 November 2023 by the insurer. Mr Gallagher’s statement provides his version of events that took place prior to the conduct that led to his dismissal.
Mr Gallagher also relies on Certificates of Capacity issued by various doctors from a practice in Essendon Fields. Mr Gallagher was examined on 20 October 2023, the Certificate of Capacity provides that he had no capacity for employment from 20 October 2023 to 10 November 2024. The Certificate of Capacity dated 20 October 2023 provides that Mr Gallagher had been assessed as having “depression, adjustment disorder” and had no capacity for employment until 10 November 2023. Mr Gallagher was again assessed on 8 November 2023 and the Certificate of Capacity states he had no capacity for employment until 10 December 2023. Mr Gallagher was again assessed on 4 December 2023 as having no capacity to return to work until 2 January 2024. During this period Mr Gallagher had been referred to both a psychologist and psychiatrist for further assessment and treatment.[8]
On the 8 January 2024, Mr Gallagher was again assessed and issued with a Certificate of Capacity which states he had no capacity for work until 31 January 2024. On that same day Mr Gallagher sent email correspondence to the Respondent stating that he was disappointed with “how events have unfolded” and that he had sought legal advice. Mr Gallagher requested to arrange a time to collect his belongings from the workplace. Mr Gallagher also disputed his final payment and made enquiries as to why he had not received 16 hours of annual leave he says he was otherwise entitled to.
On 12 January 2024, Mr Gallagher made an application for conciliation following the insurer’s decision on 13 November 2023 to reject his workers compensation application. Mr Gallagher submits he sought assistance from his partner to make the application.
Mr Gallagher relies on a letter provided by his treating psychologist Ms Michele Waters dated 21 February 2024. The letter states that “Mr Gallagher’s motivation and volition were adversely altered compared to his normal functioning which meant he was unable to meet the 21 day deadline to lodge a claim for general protections under the Fair Work Act.”
The Respondent submits Mr Gallagher’s medical condition did not prevent him from pursuing his application within 21 days following his dismissal. It submits on 18 December 2023 shortly after being dismissed, Mr Gallagher sent a text message to the Respondent notifying it of his intention to make an application to Commission. It submits that Mr Gallagher was capable of advocating for his interests at the time and intended to pursue or at least contemplated pursuing a claim in the Commission. The Respondent further submits that Mr Gallagher sent an email on 8 January 2024 advising he had sought legal advice in relation to his dismissal.
It has been well established in this Commission that an applicant seeking to rely on a medical condition to explain a delay in making an application within the 21-day period allowed needs to provide evidence establishing the nature of the condition and how that condition impacted their capacity to make an application within time. The Commission’s approach was helpfully summarised in recent decisions by Deputy President Easton in Victor Blanco v White Bathroom (Blanco),[9] and Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group (Mamo). [10]
In Mamo the Deputy President summarised the principles that apply when making informed findings about an applicant’s capacity to complete and file their application within the statutory time frame as follows;
(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, Beard 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 Beard, Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
In Lisa Marie Katerina Asher v Harvest B Pty Ltd,[11] Commissioner Ryan considered the principles in Blanco. The Commissioner also considered the proposition in the Full Bench decision Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application within time or at a time earlier than they did and made the following observation:
“[40] The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.”
It is therefore well accepted that “without proper and specific medical evidence it is very difficult for the Commission to make informed findings about the applicant’s capacity to complete and file their applications within time”[12]
The Certificates of Capacity for the periods from 20 October 2023 to 4 December 2023 are not relevant to the period I need to consider. However, for completeness whilst they state Mr Gallagher has no capacity to work, they do not provide any specific detail about his capacity to file an application within time. The Certificates of Capacity also provide that Mr Gallagher would be supported to conciliation for his workers compensation claim. The Certificates of Capacity clearly indicate that Mr Gallaghers incapacity was limited to his ability to return to work. The Certificates of Capacity do not positively demonstrate that Mr Gallagher’s depressive illness had an impact on his mental capacity so as to prevent him from lodging his application within the 21-day timeframe.
The Certificate of Capacity provided to Mr Gallagher on 8 January 2024, similarly provides that Mr Gallagher had no capacity to return to work. Again, that certificate provides that Mr Gallagher would be supported to conciliation if he chose to dispute the outcome of his claim. The certificate does not provide any new information and does not deal with any incapacity to file an application within time. I have also considered the 8 January 2024 Certificate of Capacity in the context of the events for the relevant period. It is not in contention that Mr Gallagher sent a text message on 18 December 2023 to the Respondent notifying it of his intention to make an application to the Commission and the email referred to at paragraph [13] on 8 January 2024. Although Mr Gallagher concedes that the email was misleading it is not in contention that he had sent the email informing the Respondent that he was seeking, or intended to seek legal advice.
Further to the events that took place on 8 January 2024, on 12 January 2024 Mr Gallagher lodged an “Application for Conciliation” pertaining to his workers compensation claim with the Workplace Injury Commission. Mr Gallagher submits his partner assisted him with lodging his application and seeking a conciliation to the insurer’s outcome of his workers compensation claim. While Mr Gallagher had an incapacity to return to work, his actions do not support that he was unable to take steps to further the progress of his application and file within time. I accept the Respondent’s submission that the Application for Conciliation, although completed with the assistance of Mr Gallagher’s partner, demonstrates that he was capable of advocating for his interests within the 21 days after his dismissal took effect.
I now turn to the letter dated 21 February 2024 from Ms Waters, Psychologist. Neither party called Ms Waters to give evidence. The Respondent did not object to Ms Waters’ letter being entered into evidence, and I have therefore attributed the necessary weight when considered in the context of the evidence in these proceedings. The letter from Ms Waters provides that Mr Gallagher was suffering from a depressive disorder that prevented him from lodging his general protections application within the 21 day time period. The Respondent correctly asserts that Ms Waters did not identify why Mr Gallagher’s diagnosis prevented him from lodging the claim compared to undertaking other activities during that same period and did not explain why it took until the 20 January 2024 before Mr Gallagher’s health condition was such that he could lodge his application.
Ms Waters writes that Mr Gallagher was not able to lodge his application within 21 days. This is at odds with the evidence before me and does not provide any explanation for why Mr Gallagher was during that same period able to advocate for himself when he made inquiries about his termination payment and sought a conciliation after his workers compensation claim had been denied by the insurer. While Ms Waters’ letter provides that Mr Gallagher was unable to file his application within the period of 21 days from the dismissal it does not explain why Mr Gallagher was unable to lodge his application for a further 12 days after the expiry of the 21 day period on 8 January 2024. It was Mr Gallagher’s evidence that in early to mid-January 2024 his condition started to improve and around 15 January 2024 he started filling out his application. Mr Gallagher was aware of the timeframe for lodging his application and, although I accept that he had good and bad days, I am not persuaded that there is sufficient medical evidence before me that provides an explanation for why he could not file his application for a further 12 days after the 21 day time limit.
I have considered the evidence relied on by Mr Gallagher and I have formed the view that his evidence does not provide a reasonable explanation for the whole of the delay, and the period beyond the 21 days in which he was required to file his application.
I am therefore not satisfied that the matters Mr Gallagher relies upon as reasons for the delay in making his application are exceptional circumstances. This weighs against the granting of an extension of time.
Action taken by Mr Gallagher to dispute the dismissal – s.366(2)(b)
Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[13]
On 8 January 2024 Mr Gallagher wrote to the Respondent expressing his disappointment with the termination and advised he had sought legal advice. Other than the correspondence on 8 January 2024, the text message on 18 December 2023 and the lodging of this application, Mr Gallaghers efforts were focused on disputing the insurer’s outcome of his workers compensation claim.
I am not persuaded that Mr Gallagher had taken steps to dispute his dismissal. In the circumstances, this weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
Prejudice to the employer will go against the granting of an extension of time.[14]
Neither party contends there is prejudice to the Respondent caused by the delay. The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. However, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were to be granted and consider this criterion to be neutral.
Merits of the application – s.366(2)(d)
Mr Gallagher contends that he was dismissed by the Respondent in contravention of s.340 and s.351 of the Act. He submits he suffered a workplace injury after returning to work from parental leave.
The Respondent denies the contraventions and submits Mr Gallagher’s employment was terminated on the ground of serious misconduct concerning an incident that occurred on 9 October 2023 during which Mr Gallagher made both physical and verbal threats to a co-worker.
Mr Gallagher commenced his employment with the Respondent as a fitter and turner on 12 January 2021. In August 2022, Mr Gallagher commenced paternity leave after his wife gave birth to twins. Mr Gallagher made submissions that he was diagnosed with depression and commenced on anti-depressants in or around February 2023.
On 20 February 2023, due to his family circumstances Mr Gallagher requested additional paternity leave and advised that he intended to return to work in early July 2023. Mr Gallagher was advised he would need to provide his request in writing. Mr Gallagher sent through his request on 22 March 2023. In his correspondence, Mr Gallagher made a request for a flexible work arrangement. Mr Gallagher submits he did not receive a response.
On 12 June 2023, Mr Gallagher wrote to the Respondent to advise that he intended to return to work on 17 July 2023. Mr Gallagher received a response on 15 June 2023 requesting further particulars about the flexible working arrangements sought. Mr Gallagher did not respond until 18 August 2023. Mr Gallagher submits the response he received and the fact that the Respondent did not call him left him feeling unappreciated.
Mr Gallagher wrote a further email on 24 August 2023 informing the Respondent he intended to return to work on 28 August 2023. Mr Gallagher subsequently received an email from the Respondent informing him that they were looking forward to him returning to work and his request for a flexible work arrangement could be accommodated.
On 9 October 2023, Mr Gallagher was involved in a workplace incident. Mr Gallagher is alleged to have yelled at an employee, picked up a chair and started swinging the chair at the employee. Mr Gallagher was alleged to have called the employee a “retard” and threatened the employee stating that he “knows where you live” insinuating that he could harm the employee.
On the 10 October 2023 the Respondent requested Mr Gallagher attend a meeting to formally discuss the events that occurred on 9 October 2023. The meeting did not proceed because Mr Gallagher submitted a Certificate of Capacity which stated that he was unfit for work from 10 October 2023 to 23 October 2023. Mr Gallagher subsequently lodged a workers compensation claim which was eventually rejected by the insurer.
On 17 November 2023, the Respondent sent Mr Gallagher a letter providing details of the alleged misconduct and invited him to attend a meeting on 21 November 2023 in which he was to provide a response. Mr Gallagher provided a written response to the allegations on 11 December 2023, admitting to the conduct and submitting his actions were as a consequence of his deteriorating mental health.
On 18 December 2023, the Respondent sent a termination letter by email informing Mr Gallagher that the allegations in the 17 November 2023 letter had been substantiated and that his employment had been terminated.
A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so and I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.
Fairness as between the person and other persons in alike position – s.366(2)(e)
This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.
Neither party made submissions relevant to this consideration. I find this criterion to be a neutral consideration.
Conclusion
Mr Gallagher’s application was made 12 days after the 21 day time period provided for in the Act. I accept that Mr Gallagher had ongoing depression, however having considered all of the evidence and submissions as they relate to each of the criteria set out in s.366(2) I am not satisfied that Mr Gallagher’s evidence establishes that he was incapacitated to the extent that he could not have filed his application within time. If I am wrong on that point, the evidence does not support Mr Gallagher’s reasoning for why there was a further delay of 12 days before he filed his application.
A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
An Order[15] to that effect will be published separately to this decision.
COMMISSIONER
Appearances:
Mr G Gallagher, for the Applicant.
Mr S Ellemor, for the Respondent.
Hearing details:
2024
Melbourne
19 March
[1] s.366 Fair Work Act 2009 (Cth).
[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[3] [2014] FWCFB 2288 at [21].
[4] [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].
[8] Exhibit A10.
[9] [2021] FWC 4694.
[10] [2021] FWC 3903, [24]-[25]
[11] [2024] FWC 1246.
[12] [2024] FWC 1543
[13] [2018] FWCFB 901 at [45].
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.
[15] PR776555.
Printed by authority of the Commonwealth Government Printer
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