Mr Lauro Da Silva Azambuja v Central Queensland University T/A CQUniversity Australia

[2020] FWC 2622

[2020] FWC 2622

FAIR WORK COMMISSION

DECISION

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

Mr Lauro Da Silva Azambuja
v
Central Queensland University T/A CQUniversity Australia
(C2019/4510)

COMMISSIONER BOOTH BRISBANE, 19 MAY 2020

Application to deal with contraventions involving dismissal – application filed out of time – whether exceptional circumstances present – consideration of medical evidence – Applicant disputed dismissal with employer outside of statutory timeframes – exceptional circumstances not present.

[1] Mr Lauro Da Silva Azambuja applies under s. 365 of the Fair Work Act 2009 (Cth) to deal with a dispute in relation to a contravention said to involve his dismissal by Central Queensland University T/A CQ University Australia (CQ University). In his Form F8 general protections application involving dismissal (Form F8) filed on the 19 November 2019, Mr Da Silva Azambuja stated that he was dismissed at the initiative of the employer on 18 June 2018 and that his dismissal took effect on that date. This application follows an earlier application made under s372 of the Act which was filed 22 July 2019.

[2] By virtue of s. 366(1) of the Act, a general protections application involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The application was 1 year, 5 months and 1 day outside the time required in s. 366(1) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

Chronology

[3] Mr Da Silva Azambuja commenced employment with CQ University on 28 January 2014, in the position of Procurement Advice Team Leader, classified as Higher Education Worker (HEW) Level 8, on a full-time basis. On 11 August 2014, Mr Da Silva Azambuja was reclassified to HEW Level 9, and continued to work on a full-time basis.

[4] On 22 February 2016 and as per his request, Mr Da Silva Azambuja’s hours of work were varied to part-time arrangements of 24 hours per week. Mr Da Silva Azambuja’s hours increased to 30 hours per week on 8 July 2016, again at Mr Da Silva Azambuja’s request. On 1 January 2018, Mr Da Silva Azambuja’s was reclassified to HEW Level 10.

[5] On 28 May 2018, Mr Da Silva Azambuja was sent a letter by Ms Narelle Pearse, Deputy Vice-Chancellor (Finance and Planning), notifying him that CQ University had commenced a misconduct process in accordance with clause 27.1 of the Central Queensland University Enterprise Agreement 2017. The letter outlined allegations of misconduct or serious misconduct in relation to his execution of CQ University’s tendering process, and breach of the financial delegation allocated to his position. Mr Da Silva Azambuja was notified in this letter he had ten (10) days to provide a written response.

[6] On 31 May 2018, a medical certificate was submitted by Mr Da Silva Azambuja. On the 4 June 2018, CQ University offered to “pause” the process while Mr Da Silva Azambuja’s medical certificate was in force, to which he agreed.

[7] In an email dated 15 June 2018 and at 1:35 pm, CQ University recommenced the process after having become aware that Mr Da Silva Azambuja had contacted the supplier relevant to the misconduct allegation while he was on sick leave and against the direction of CQ University. An extended date was provided to him to respond to the allegations provided to the Mr Da Silva Azambuja on 28 May 2018.

[8] On 15 June 2018 at 4:52 pm, Mr Da Silva Azambuja sent an email to Ms Pearse submitting his resignation. The email included the following:

“If QCU understands the opposite, I want to submit my resignation effective immediately. This resignation is not voluntary. My emotional conditions are worsening, and I have to put an end to this process. I am compelled to resign because of the pressure, the result of your attitudes since day one of my moving from International and Services to Finance and Planning, which I consider biased toward me”. 1

[9] In a letter dated 19 April 2019, addressed to Mr Nicholas Klomp, Vice Chancellor, and titled “My CQU Journey that ended up with PTSD – “WITHOUT PREJUDICE”, Mr Da Silva Azambuja states the letter has two objectives. The first being to “clean my name and clarify about the treatment that I received in many instances along the four and half years of my watch…” and “the second objective is related to my extra time, which undoubtedly it is my right to be reimbursed”.

[10] On 22 July 2019, Mr Da Silva Azambuja filed a Form F8C – General protections application not involving dismissal (Form F8C) with the Commission’s Registry in Brisbane. Attached to Mr Da Silva Azambuja’s Form F8C was an 11-page letter dated 10 July 2019 and addressed to the President of the Fair Work Commission, the Honourable Justice Ross.

[11] In Mr Da Silva Azambuja’s letter, he acknowledges that his application has been made outside the required time, and states the reasons for his failure to lodge within the required time as follows:

“1. During my journey of the initial four years (2014 – 2017), and due to the resistance regarding implemented processes as requested by my initial immediate superior, Vice-President Mr. Alastair Dawson, I was the object of aggression. I remained in my position because the heart condition of my wife started to deteriorate. the reason whv my salary became vital. However, that condition began to erode my resistances.

On January/2018, with my transference to Finance and Planning, I started showing the first symptoms of the emotional disorder because of the treatment towards me. As an example of those symptoms, on 15/5/2018, I check-in the ER of Rockhampton Base Hospital (report attached), after several minutes unconscious.

On 16/6/2018 because of my emotional condition and the health of my wife, I resigned, however in my resignation letter to the Deputy Vice-Chancellor of financial and Planning, I quoted:

"I want to submit my resignation effective immediately. This resignation is not voluntary. My emotional conditions are worsening, and I have to put an end to this process. I am compelled to resign because of the pressure, the result of your attitudes since day one of my moving from International & Services to Finance and Planning, which I consider biased towards me."

Because of my weak financial condition, I seek help on online support such as Blueline and Beyond Blue. On these consultations, I was diagnosed to have PTSD. Because of that, my [GP] put me under strong medication. After leaving CQU, my [GP] also diagnosed symptoms of depression and requested a consultation with Queensland Health (letter attached), that also came to the same diagnoses.

As far as my understanding, I would not resign, but if I did, it was against my will. The circumstances forced me, and I received advice from my first superior, Mr. Dawson, to take that course of actions.

Only on Apr/2019, I found the strength to contact CQUniversity trying a settlement for the claim "b above" to no avail After that, I contacted Caxton Legal Centre and learned the full array of my rights, the reason why I am contacting you.

2. On May/2017, my wife was transported to Brisbane via Flying Doctors for an emergency procedure (pieces of evidence attached). On May and August/2018, and subsequently March/2019 my wife went through heart procedures in Brisbane, which required intensive care.”

[12] On 30 July 2019, QC University lodged a Form F8A – Response to general protections application (Form F8A). In its Form F8A, QC University agreed to participate in a conference convened by the Commission.

[13] The matter was listed for conference by telephone before me on 6 September 2019. In the Notice of Listing dated 7 August 2019, the parties were advised that the conference would give the parties an opportunity to discuss the application, the employer’s response and the wishes of the parties, including the opportunity to resolve the matter.

[14] During the conference, it was identified to Mr Da Silva Azambuja that he had lodged an application for the Commission to deal with a non-dismissal dispute under s. 372 of the Act. Mr Da Silva Azambuja was accordingly invited to consider whether he wished to withdraw his original application (being a Form F8C), and file an application for the Commission to deal with a dismissal dispute under s. 365 of the Act (being a Form F8).

[15] On 23 September 2019, Mr Da Silva Azambuja sent correspondence to my Chambers for my consideration. Mr Da Silva Azambuja requested a period of two months to advise whether he wished to file an application under s. 365 of the Act and to put together such an application. The reasons for his were request were because at the time, his wife was still recovering from her fifth heart procedure that occurred in March 2019 and an operation on her wrist. This, Mr Da Silva Azambuja stated, combined with the conference that took place on 6 September 2019, aggravated his psychological condition. Supporting medical documentation was not provided.

[16] Mr Da Silva Azambuja’s request was granted on the 24 September 2019, on the condition that no further extensions will be granted without a medical certificate in support of such requests.

[17] A Form F8 – general protections application involving dismissal (Form F8) was received from Mr Da Silva Azambuja on 19 November 2019. Attached was a document titled “Attachment to Section 365 – Form 8”.

[18] The matter was listed for a further conference before me on 5 December 2019 to deal with the matter of whether the Commission should accept Mr Da Silva Azambuja’s application made pursuant to s. 365 of the Act.

[19] On 10 December 2019, CQ University accepted that the Commission could amend an application made under s. 372 of the Act to an application made under s. 365 in accordance with the Full Bench’s decision in Hambridge v Spotless Facilities Services. 2 However, CQ University submitted that the Commission should not accept Mr Da Silva Azambuja’s application made under s. 365 of the Act “until and unless it is satisfied that there are “exceptional circumstances” for the original application being filed out of time”.3

[20] The matter was again listed for a further conference before me on 20 January 2020 to discuss the matters raised by CQ University in its email dated 10 December 2019. Mr Da Silva Azambuja was provided with an opportunity to seek legal advice as to the consequences of proceeding to convert his application lodged under s. 372 of the Act to an application under s. 365 of the Act and to advise whether he wished to proceed with a s. 365 application or continue with his s. 372 application before the 3 February 2020.

[21] Mr Da Silva Azambuja confirmed in an email dated 3 February 2020 to proceed with an application under s. 365 of the Act.

[22] After seeking its view, CQ University consented to the amendment sought by Mr Da Silva Azambuja, however sought that the Commission deal with the extension of time of the application made under s. 365 in the first instance. On 4 February 2020 and pursuant to s. 586 of the Act, I issued an Order [PR716413] to amend the application lodged by Mr Da Silva Azambuja under s. 372 of the Act be amended to an application under s. 365 of the Act.

[23] On 5 February 2020, directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Da Silva Azambuja to make his application. The relevant provision of the Act, s. 366, was outlined in the Directions. The parties were also advised that following the filing of all materials, I will consider whether the matter is appropriate to be determined on the papers.

[24] Mr Da Silva Azambuja did not comply with the Directions, failing to file submissions in relation to why the Commission should allow an additional period for the application and witness statements by 4:00 pm on 21 February 2020.

[25] On 25 February 2020, CQ University wrote to my Chambers, requesting an urgent response from Mr Da Silva Azambuja and putting him on notice that CQ University may make an application for the Commission to dismiss the application pursuant to ss. 587(1) and (3) of the Act. On the same day, I directed the Applicant provide an urgent response regarding whether he intends to file the materials as directed, and an explanation for the delay.

[26] Mr Da Silva Azambuja sent an email in response to my Chambers at 8:00 am 26 February 2020, stating:

“Dear Commissioner Booth,

As far as I understand my application was already delivered, please see attached.

In my last phone conversation with one of your officers, the only doubt was about the name of the institution CQU.

I thought that we come to a common-sense about that.

Please let me know what I have to do moving forward.

Best regards,

Lauro”.

[27] At 8:20 am and 8:58 am on 26 February 2020, Mr Da Silva Azambuja sent further emails to my Chambers. Attached were the document titled “Attachment to Section 365 – Form 8” that was previously provided on 19 November 2019 and the letter addressed to the President of the Commission. This material was not served on CQ University.

[28] At 9:14 am, Mr Da Silva Azambuja sent a further email, stating:

“Dear Commissioner Booth,

Complementing my previous email.

Please note that my correspondence to FWC President has not involving any form of any section.

After that, I received a call from an FWC officer advising me that without a form, my claim would not be accepted.

Also, she advised me to apply under for general protection, which wrongly led me to section 372.

Best regards,

Lauro Azambuja”

[29] On 3 March 2020 and in an email sent to my Chambers, CQ University submitted that due to Mr Da Silva Azambuja’s failure to comply with requests and directions of the Commission, the Commission should exercise its discretion to dismiss the matter. CQ University also requested that the formal Direction be varied for the filing of its materials. I granted the extension for filing of the CQ University’s material until 12:00 noon on Wednesday, 11 March 2020.

[30] Submissions were received by CQ University in accordance with the amended directions.

[31] On 17 March 2020, my Associate wrote to Mr Da Silva Azambuja inviting him to file any reply material by close of business, 18 March 2020.

[32] Mr Da Silva Azambuja submitted further material on 18 March 2020 in accordance with the amended directions. The material lodged by Mr Da Silva Azambuja included material previously lodged, and a bundle of medical certificates and documentation with regards to his wife’s health condition and his own health conditions.

[33] On 19 March 2020, Mr Da Silva Azambuja wrote to my Chambers stating that he had failed to include a document titled “Rockhampton Hospital Emergency Department Report” that was attached. My Associate responded to Mr Da Silva Azambuja’s email, requesting him to forward to document to CQ University and copy in my Chambers. A further email was received from Mr Da Silva Azambuja, in which the document was attached and CQ University included in the email correspondence.

[34] Having considered the material provided, I determined to conduct a hearing on 27 April 2020. At the hearing, Mr Azambuja represented himself and CQ University was represented by Ms Jacinta Cumming and Ms Catherine Pugsley of the Australian Higher Education Industrial Association, of which CQ University is a member.

Matters to be taken into account

[35] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 4

[36] The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:

“[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.”

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

[38] Under s. 322(2) of the Act, the Commission may allow for a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.”

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

Consideration

Reason for the delay

[40] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 6 or a reasonable explanation.7 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,8 the Full Bench noted at [39]:

“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 reliant matters and the assignment of appropriate weight to each.”

[41] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is made. That said, the circumstances from the date the dismissal took effect must be considered in assessing the explanation of the delay. 9

[42] Mr Da Silva Azambuja relied on two grounds as to the reason for the delay in lodging his application – the medical condition of wife and his own medical condition.

[43] Documentation outlining Mr Da Silva Azambuja’s wife’s medical condition history was lodged by the Applicant. In summary, the documentation details Mrs Da Silva Azambuja first displayed symptoms of her medical condition in 2012 and that it was not until December 2014 that she was diagnosed with bundle branch blockage and atrial fibrillation. In September 2015, Mrs Da Silva Azambuja underwent operation for atrial fibrillation and from 29 August to 3 September 2016, she was admitted to the Rockhampton Hospital. Mrs Da Silva Azambuja had an emergency procedure in May 2017 that required her to be transported to Brisbane, and in May 2018, August 2018 and March 2019, she went through heart procedures in Brisbane. More recently, Mrs Da Silva Azambuja sustained an injury to her wrist after she experienced a fall.

[44] Mr Da Silva Azambuja submitted various medical documentations indicating a range of test were performed on 20 March 2018 and 21 March 2018, including but not limited to: Haemoglobin AIC Blood test, C Reactive protein test, Rheumatoid Master test and Thyroid Master test. It is Mr Da Silva Azambuja’s submissions that in January 2018, he first displayed symptoms of an emotional disorder, and provides the example that on the 15 May 2018, he was required to admit himself to emergency department of the Rockhampton Base Hospital.

[45] As noted above, medical documentation was also submitted by Mr Da Silva Azambuja, this included:

•  A letter dated 30 May 2018 from Dr Sunda to Dr Williams that states Mr Da Silva Azambuja was seen by Dr Williams for intractable low back pain with right sciatic radiation;

•  A letter dated 15 May 2018 from the Rockhampton Hospital Emergency Department to Dr Sunda stating Mr Da Silva Azambuja had presented having collapsed;

•  A referral dated 14 February 2019 from Dr Sunda to Rockhampton Hospital Outpatients Mental Health Services, that stated Mr Da Silva Azambuja had “features of depression and some of PTSD”;

•  A letter dated 17 June 2019 from Dr Prabhu to Dr Sunda, diagnosing Mr Da Silva Azambuja with major depression, some features of post traumatic stress disorder and recommending a plan. This letter stated:

“Mr Azambuja is struggling with a depressive episode following what appears to be a sustained period of him feeling helpless and powerless in the context of his inability to deal with a conflictual situation at work. His current inability to deal with this had left to a significant narcissistic injury to his self. This coupled with his financial instability and the need to manage his wife’s significant medical illness has further made him vulnerable to stress”.

•  Various prescriptions for medicine.

[46] CQ University submitted that in respect to his wife’s medical condition, Mr Da Silva Azambuja had not provided any evidence that his wife’s medical condition impeded him from filing his application between 15 June 2018 and 22 July 2019. In advancing its argument, CQ University also noted the following:

•  In May 2017 and May 2018, Mr Da Silva Azambuja was still employed by the QC University and his wife’s condition did not prevent him from doing so;

•  The latest date on which Mr Da Silva Azambuja relies on his wife’s condition as a reason for delay is March 2019, noting that Mr Da Silva Azambuja did not file his application until 22 July 2019; and

•  The medical records submitted by Mr Da Silva Azambuja from HCF demonstrate that his wife was in hospital from 21 August to 23 August 2019, a period after he lodged his application and therefore cannot be relevant .

[47] CQ University submitted that Mr Da Silva Azambuja failed to provide evidence that his own medical condition impeded him from filing his application at any time between 15 June 2018 and 22 July 2019. CQ University submitted the following:

•  The letter dated 15 May 2018 from the Rockhampton Emergency Department related to a single incident that occurred on 14 May 2018, and was before his resignation on 15 June 2018;

•  The referral from Dr Sunda to Rockhampton Hospital Outpatients Mental Health Service on 14 February 2019 is not evidence that at all time between 15 June 2018 and 22 July 2019, Mr Da Silva Azambuja’s mental state was such that he was unable to file an application in the Commission;

•  The letter from Dr Prabhu dated 17 June 2019 does not provide evidence that at all times between 15 June 2018 and 22 July 2019, Mr Da Silva Azambuja’s mental state was such that he was unable to file an application in the Commission.

[48] In advancing its argument, CQ University relied on the Full Bench of the Commission’s decision in Woolworths Limited v Ms Yu Duo (Lynda) Lin. 10 The Full Bench of the Commission established that:11

•  if there is an explanation for some of the period of the delay, that should be considered and weighed within the context of the total period and the absence of any other acceptable reason for the delay;

•  if medical evidence is to be accepted, it should not be “generalised”, but should speak to an applicant’s capacity to lodge an application during the delay period (except perhaps for any period for which there is acceptable evidence such as hospitalisation.

Consideration of the medical evidence

[49] Mr Da Silva Azambuja relies on medical issues leading up to his resignation, i.e. on 15 June 2018 to explain his delay. He goes back a long way to some significant health problems of his wife dating between 2012 and 2013 and his own health conditions which began to deteriorate the end of 2017. Throughout this period he continued to work and focus on caring for his wife.

[50] I accept that the time of his resignation, he felt he was facing pressure at work in relation to a number of matters raised by his employer about his performance and his wife’s and his own health condition.

[51] This explains the reason for his resignation but does not explain the delay in filing his application.

[52] Subsequent to his resignation Mr Da Silva Azambuja continued to face health challenges. These were both his wife’s health challenges and his own.

[53] He seeks to rely on these as a reason for the delay. However, I conclude that the medical incidents described, while serious, explain only part of the delay for the period between the date of the application which was required to be lodged (6 July 2018) and the date the original (s372) application was lodged (22 July 2019).

[54] While medical evidence about an applicant’s mental state could explain delay, it would need to be a credible explanation for the entirety of the delay.

[55] There is no indication that the applicant’s mental state can provide an explanation for the entire delay. In the decision of Woolworths Ltd v Duo, the Full Bench of the Fair Work Commission stated as follows: 12

[39] While the Commission is sympathetic to people with mental illness, on its own mental illness would be unlikely to be a sufficient reason to grant an extension of time, and especially one for such a long period as Ms Lin’s. This would be especially so where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin.

[56] Mr Da Silva Azambuja was not hospitalised for the entire period of the long delay nor does he provide any other explanation for the entirety of the delay.

[57] I conclude that the medical evidence as provided by the applicant does not explain the delay.

[58] CQ University also drew attention to Mr Da Silva Azambuja’s ability to contact CQ University in April 2019 in an attempt to settle the matter and to contact legal advisors. In the hearing held on 27 April 2020, it was put to Mr Da Silva Azambuja that he was able to engage with his former employer in April 2019, however he did not file his application with the Commission until some three months later. Mr Da Silva Azambuja, in response, stated, without further evidence, that he had sought advice from an attorney and was advised in the first instance, and to demonstrate good faith, that he should engage directly with his employer. Should that not be successful, then he was advised to pursue his matter in the Commission and then the courts.

[59] It is clear that in April 2019, Mr Da Silva Azambuja was capable of raising matters with his employer. That he could progress these matters with his employer and seek to settle outside of a formal process in April 2019 is important. This is because it establishes that Mr Da Silva Azambuja was capable of progressing his legal rights at this time. He chose not to progress this application, but sought to engage directly with his employer in an attempt to resolve certain matters in dispute. His capacity to directly engage with his employer is evidence that he had the capacity to lodge this application if he so chose.

[60] Following unsuccessful negotiations with his former employer, Mr Da Silva Azambuja submitted he contacted Caxton Legal Service and then learnt the “full array of his rights”. However, not understanding legal rights is not of itself a reason for the delay, 13 and in any event it took a further two months, in itself longer than the statutory time period, for the matter to be filed. The evidence does not establish reasons for the entirety of the delay.

Any action taken by the person to dispute the dismissal

[61] As noted above, it is uncontested that Mr Da Silva Azambuja contacted CQ University in April 2019 in attempt to settle the matter, 10 months and 1 day after the date his termination ended. It was not until a further 3 months and 3 days had passed that Mr Da Silva Azambuja elected to lodge an application with the Commission.

[62] Mr Da Silva Azambuja has not attempted to dispute the termination of his employment within the 21 day timeframe, nor in a timely manner. I consider this as a neutral factor in the present case.

Prejudice to the employer (including prejudice caused by the delay)

[63] Prejudice to the employer will go against granting an extension of time. However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”. 14

[64] CQ University submitted that the delay has been significant, and a long delay gives rise to “a general presumption of prejudice”. 15

[65] I conclude this factor is neutral in the present circumstances.

The merits of the application

[66] While I note that Mr Azambuja has some significant hurdles in establishing the merits of this claim, having resigned from his employment, albeit under protest, following issues of conduct being raised with him, I conclude this factor is neutral.

Fairness as between the person and other persons in a similar position

[67] Neither party drew my attention to any cases in which a person was in a similar position. I consider this factor is not relevant in these circumstances.

Conclusion

[68] The Applicant has not been able to explain in a credible way the entirety of the delay of 13 months in filing his application.

[69] Many people find themselves in challenging circumstances following a dismissal. Regrettably, this in itself is not unusual, uncommon, or out of the ordinary. However, on the Applicant’s evidence, which falls significantly short of explaining the entirety of the delay, the Applicant was able to assert what he perceived to be his legal rights with his employer. These factors are all relevant matters when considering whether there are exceptional circumstances.

[70] I accept that Mr Da Silva Azambuja’s personal situation both before and after its termination was difficult. I also accept that it is often the case that his resignation, which he considered to be forced, had an effect on his mental health. These are challenging but not exceptional circumstances and Mr da Silva Azmbuja has not properly explained the 13 month delay in filing the application.

[71] I am not therefore satisfied that there are exceptional circumstances and refuse to allow an additional period of time for the filing of the application.

[72] The application is dismissed. I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719487>

 1   Attachment 4, Respondents’ Outline of Submission

 2   [2017] FWFC 2811

 3   Respondent’s email dated 18 December 2019.

 4   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14]

 5   [2019] FWC 25

 6   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9]

 7   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

 8   [2018] FWCFB 901

 9   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 a [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFV 2149 at [31]

 10   [2018] FWCFB 1643

 11   Ibid, at [67]

 12   Woolworths Limited v Ms Yu Duo (Lynda) Lin[2018] FWCFB 1643 [39]

 13   8 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at pp. 299‒300

 15 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [556]