Mr John Tabar v Abbott Australasia Pty Ltd T/A Abbott Australasia

[2019] FWC 7065

[2019] FWC 7065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr John Tabar
v
Abbott Australasia Pty Ltd T/A Abbott Australasia
(C2019/4539)

DEPUTY PRESIDENT BOYCE SYDNEY, 14 OCTOBER 2019

Application to deal with contraventions involving dismissal – application filed out of time – reason for delay depressive illness – lengthy delay (214 days out of time) – illness does not amount to incapacity – no reasonable explanation for whole of delay – no exceptional circumstances - extension of time refused – proceedings dismissed.

[1] On 22 July 2019, Mr John Tabar (Applicant), lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by emailing a Form F8 to the Commission’s Sydney Registry. The Applicant claimed that his employment with Abbott Australasia Pty Ltd t/a Abbott Australasia (Respondent) was dismissed unlawfully by the Respondent on 29 November 2019.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.

[3] The Applicant acknowledges that he lodged his application 214 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 20 December 2018.

[4] On 26 September 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. I have determined that the Applicant’s request for an extension of time to lodge his application be refused. The reasons for that decision follow.

Permission to appear

[5] At the hearing, the Applicant was represented by Mr Dickran Yakenian (Solicitor, Legal Edge Australia). The Respondent was represented by Ms Bianca Dearing (Solicitor, Baker McKenzie). Permission to be represented by a lawyer was granted to both parties prior to the hearing on the basis that the matter would run more efficiently with the assistance of legal professionals. Neither party objected to the other being legally represented.

The employment and the dismissal

[6] On 5 May 2015, the Applicant was employed as a Medical Services Manager by the Respondent.

[7] On 3 December 2018, the Applicant was dismissed by the Respondent on the grounds of alleged genuine redundancy (the dismissal was effective 3 December 2018). The Applicant was a Senior Technical Services Manager at the time of his termination. The Applicant received payment in lieu of notice, his accrued entitlements, and a severance payment.

Matters to be taken into account

[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which 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.”

[9] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2 A decision whether to extend time under s.366(2) involves the exercise of a discretion.3

[10] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  4 (Nulty)as follows:

“[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.” (emphasis added)

[11] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 5

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[12] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[13] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. 7

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged.

[15] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 8 

[16] The Applicant submitted that he suffers from Bipolar I Affective Disorder (Depressive Illness), being a psychological condition. I accept that the Applicant suffers from this condition based upon the documentary and oral evidence adduced at hearing.

[17] The fact that the Applicant was diagnosed with the Depressive Illness does not in-and-of itself give rise to an exceptional circumstance. The issue is whether the Depressive Illness lends weight to the existence of exceptional circumstances insofar as it is lends itself to the reason for the delay.

[18] The Applicant’s medical evidence does not state that he was unable to comply with the timing requirements of the Act due to incapacity. Rather, at its highest, the Applicant’s medical evidence merely identifies that the Applicant has suffered (and continues to suffer) from his Depressive Illness. 9

[19] The Applicant gave oral evidence that there was no definitive date that the symptoms of his Depressive Illness reached a point that prevented him from making an application within the 21-day time limit. The Applicant claimed that such symptoms were apparent from at least two weeks following his dismissal. The Applicant acknowledges that there is a significant lag between the onset of his symptoms, and him approaching a medical professional for assistance. The Applicant submitted that such delay in seeking medical assistance is common for someone with his condition (which I accept).

[20] In cross-examination, led by Ms Dearing, the Applicant gave evidence that he first sought legal advice in “late June, early July [2019]” from Legal Edge Australia regarding his dismissal. The Applicant gave evidence that he was informed of the 21-day time limit at that time. The Applicant’s application, however, was filed on 22 July 2019. The Applicant explained that the delay between the receipt of advice, and the actual filing, was because of his Depressive Illness. The Applicant stated he did not defer to his lawyer to file the application (in late June, early July 2019) because of financial concerns, and a belief that he could do that filing himself.

[21] Ms Dearing took the Applicant to an email sent to the Respondent on 1 February 2019, in which the Applicant expresses an interest in a job advertised by the Respondent (Job Application Email). The upshot of the evidence as to this email is that the Applicant was seeking further employment with the Respondent in the period he allegedly suffered from his Depressive Illness. I accept that the Applicant was not seeking alternative employment to the same degree as someone who is not suffering from his Depressive Illness. Nonetheless, it must be recognised that he was seeking employment, and so must have had some degree of capability in engaging with the employment process (and the outside world).

[22] Ms Dearing also took the Applicant to an email he had drafted to the Respondent (but never sent). The Applicant gave oral evidence that this draft email was intended to voice the Applicant’s concern as to the reasons for his dismissal, and to gain better clarity on the reasons given (Email Contesting Dismissal). Given the Email Contesting Dismissal was drafted by the Applicant in the period immediately before, or at, or during the time he allegedly suffered from his Depressive Illness, I conclude that the Applicant must have had some degree of capability in engaging with the disputed reasons for his dismissal long before 22 July 2019 (when he finally lodged his application).

[23] Indeed, when the Applicant was asked if he was of a clear mind when he wrote the Email Contesting Dismissal, the Applicant said “yes”. Ms Dearing then put it to the Applicant that if he was of clear enough mind to draft the Email Contesting Dismissal, then he must also have been of clear enough mind to have sought legal advice regarding his termination at that time. I do not accept the Applicant’s rejection of that contention.

[24] I find that the Email Contesting Dismissal is lucid, eloquent and well written. It does not read as though it was prepared by someone who was not capable of engaging with the disputed reasons for his/her dismissal, and/or completing a General Protections application.

[25] The Respondent submitted that the evidence given by the Applicant does not show he was unable to seek legal advice and/or draft and file his application within time (or within an earlier time that he did on 22 July 2019, i.e. 214 days late). I accept the Respondent’s submissions in this regard.

[26] The Applicant’s evidence is contradictory. He claims to have been so incapacitated that he could not file or otherwise properly pursue his application. Yet the Applicant was able to draft the Email Contesting Dismissal, and he was able to seek re-employment with the Respondent. He was not completely ‘incapacitated’ (in the ordinary use of that word). He was not otherwise confined. Rather, he was functional enough (physically and mentally) to perform the tasks he admits to undertaking. This factor weighs heavily against any finding as to exceptional circumstances.

[27] I note that my findings and reasoning here is not that I consider the Applicant to have been disingenuous in explaining his situation or condition. I accept that he believes he was burdened by his Depressive Illness. But I cannot accept, on the evidence, that the Applicant was so incapacitated that he could not have taken steps to dispute his dismissal by filing his application within time. The delay in this matter is substantial. Even if it might be said that the Applicant’s reasons for delay might go part way towards explaining some of the period of the delay, there is no basis to conclude that the Applicant’s reasons explain all of the period of the delay. Indeed, it is hard to fathom that there could be any reasonable explanation for a 214 day delay in filing a General Protections application (and certainly not the explanation provided by the Applicant). 10

[28] Given the evidence identifies (including the Applicant’s own evidence) that the Applicant was, at least at some points in time, “of clear mind”, prior to 22 July 2019, then the Applicant ought to have filed his application earlier than he did. He did not do so, nor does he provide a reasonable explanation as to why he did not do so, or why it was unreasonable for him to do so. The Applicant’s reasons for delay, and the length of the delay, therefore weigh heavily against any finding as to exceptional circumstances in this matter.

Action taken by the Applicant to dispute the dismissal

[29] The Respondent submitted that the Applicant took no other steps to dispute his dismissal prior to lodging his application.

[30] The Applicant gave evidence that he disputed the reasons given for his dismissal with his manager on the day of his dismissal. The Applicant stated that he took issue with the reasons provided for his redundancy, and his selection for redundancy.

[31] I accept that whilst the Applicant did dispute his dismissal at or about the time it occurred, he did not follow through on the issue thereafter with the Respondent. I therefore consider this factor to be a neutral one (in the circumstances of this case) as to any finding of exceptional circumstances.

Prejudice to the employer

[32] The Respondent submitted that, by filing his application 214 days outside of the 21-day time limit, the Applicant’s delay will cause prejudice the Respondent.

[33] The Applicant submitted that the Respondent would not face prejudice because the Respondent is well resourced to defend legal claims. The Applicant further submitted that any prejudice caused by the delay, at least in relation to witness evidence and witness memory, is remedied by the Respondent’s assertions that the Applicant’s dismissal has been well documented.

[34] I find that the Respondent will be visited by prejudice due to the Applicant’s very lengthy delay in the filing of his application. I do not accept that documentary evidence can always cure the memory of a witness, especially where issues of credibility are likely to arise. Further, a long delay gives rise “to a general presumption of prejudice” 11

[35] Prejudice to the Respondent arising from the lengthy delay is therefore a factor that weighs against any finding as to exceptional circumstances in this matter.

Merits of the application

[36] The principles stated Kyvelos v Champion Socks Pty Ltd, 12 albeit in relation to a predecessor of the Act, still remain good law and are worth 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 …”. 13 (my emphasis)

[37] The Applicant claims that his redundancy was not the result of operational changes in the Respondent’s enterprise and that his selection for redundancy was for a prohibited reason. In short summary, the Applicant claims that he was targeted by the Respondent for dismissal because he raised concerns (in 2017) in relation to managerial decisions, which the Applicant considered to be (at the very least) “unethical”. In essence, as I understand it, the Applicant alleges that he was dismissed not for reasons of genuine redundancy, but because he exercised a workplace right to make a complaint or inquiry in relation to his employment.

[38] The Respondent’s case is that the decision to make the Applicant redundant was because the Applicant’s role was no longer required to be performed by anyone in the business (and that it had no alternative role to offer the Applicant within the business). The Respondent denies there was any ulterior motive/s in its decision to terminate the Applicant, rather, the Applicant was genuinely made redundant.

[39] Noting that I cannot (and do not propose to) make findings as to the merits of the Applicant’s allegations concerning the operative reason/s for his dismissal, I nonetheless find (on the very limited evidence before me) that the Applicant has an arguable (albeit very weak) prima facie case. That said, I consider the merits of the Applicant’s claim in this matter to be a neutral consideration. The fact that an Applicant has an arguable case on the merits (at this stage of proceedings) is not in-and-of itself out of the ordinary. There is nothing about the merits of the Applicant’s claim that that lends itself to a finding of unusual, special, or uncommon circumstances (i.e. to the extent that such matters relate to the Applicant’s delay in filing his application).

Fairness as between the Applicant and other persons in a like position

[40] Fairness as between an applicant and other persons in a similar position will generally turn on their own facts, albeit that this consideration may relate to matters currently before the Commission, or matters previously decided by the Commission. 14

[41] Neither party made any submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.

Conclusion

[42] I do not doubt that the Applicant’s Depressive Illness hindered his ability to file his application (to some degree and at some points in time). What I cannot conclude on the evidence before me, however, is that such hindrance gives rise to a finding as to exceptional circumstances. The Applicant’s circumstances do not reasonably explain the entirety of the delay, especially considering the evidence that shows he was capable of applying for alternative employment, and drafting an email disputing his dismissal, during the period of such delay.

[43] Having considered the factors required to be taken into account under s.366 of the Act, and the facts and circumstances of this case, I am not satisfied that there are any exceptional circumstances for the Applicant’s delay in filing his application 214 days out of time. I therefore do not (and am unable to) exercise my discretion to grant an extension of time in this matter.

[44] The matter is to be dismissed. An order to that effect is issued with this decision PR713282.

DEPUTY PRESIDENT

Appearances:

Mr D Yakenian (Solicitor, Legal Edge Australia) for the Applicant.

Ms B Dearing (Solicitor, Baker McKenzie) for the Respondent.

Hearing details:

Thursday, 26 September 2019 in Sydney.

Printed by authority of the Commonwealth Government Printer

<PR713281>

 1   Fair Work Act 2009, ss. 366(1) and (2).

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 3   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 4   [2011] FWAFB 975.

 5   [2019] FWCFB 2384 at [16] – [20].

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45].

 8   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; and Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.

 9   I note and have regard to the decision of the Full Bench of the Commission in Australian Postal Corporation v Zhang[2015] FWCFB 5285, at [21]-[22], and [45].

 10   See Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, at [31].

 11   Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (186 CLR 541, at 566; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299-300.

 12 (1995) 67 IR 298.

 13   Ibid 299-300.

 14   Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 at [41].