Mr Mark Killmier v The University of Western Australia

[2024] FWC 1388

[2024] FWC 1388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Mark Killmier

v

The University of Western Australia

(U2024/4472)

DEPUTY PRESIDENT BEAUMONT PERTH, 28 MAY 2024

Application for an unfair dismissal remedy – extension of time

1. The issue and outcome

1. On 18 April 2024, Mr Mark Killmier (the Applicant) applied for an unfair dismissal remedy having been dismissed from The University of Western Australia (the Respondent) on 15 December 2023. The Applicant lodged his unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).  The Respondent objected to the application on the basis that it had been filed outside of time.  This decision deals with the out of time objection. 

1. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether an applicant lodged her or his unfair dismissal application with the Commission within the statutory time period prescribed by s 394(2) of the Act and another, is whether an applicant was protected from unfair dismissal.

1. Whilst the Respondent submits that the Applicant was not dismissed (and therefore not protected from unfair dismissal), the Full Bench in Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc),[1] proposed that the proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[2]  That approach has therefore been adopted here.

1. The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are considered.

1. It is uncontroversial that the Applicant initially made an unfair dismissal application to the Commission on 1 January 2024 (matter No. U2024/16).  At that time, the Applicant named the Respondent to the application as the Cooperative Research Centre for Transformations in Mining Economics (CRC TiME).  CRC TiME is understood to be a part-Commonwealth funded research company supported by the Respondent.[3] 

1. Whilst employed with the Respondent, the Applicant had performed work as a Business Manager for CRC TiME.  According to the Respondent, the Applicant had been engaged on a fixed-term contract, which stipulated that the continuation of the Applicant’s employment was contingent upon the availability of funding for the position from CRC TiME.[4]  CRC TiME fell within the Respondent’s School of Social Sciences.[5]

1. Come 13 December 2023, the Respondent was notified by CRC TiME that its Board had decided to withdraw funding for the Applicant’s position.[6]  On 14 December 2023, the Applicant was informed that his employment would cease due to the withdrawal of funding for his position, as per the terms of his fixed term contract.[7] The employment relationship came to an end on 15 December 2023 and therefore, the Applicant was required by the Act to lodge his unfair dismissal application by 5 January 2024. That Applicant’s first unfair dismissal application, whilst naming the incorrect Respondent, was filed within the statutory period prescribed by s 394(2)(a). It is noted, the Applicant contends that he was ‘constructively dismissed’ and that any purported withdrawal of funding or need to restructure the ‘Finance section’ of CRC TiME, was concocted.

1. Having lodged his unfair dismissal application against CRC TiME on 1 January 2024, the Applicant purports that Dr Boggs, the Chief Executive Officer of CRC TiME, agreed to respond and participate in the process (presumedly the conciliation process) except for the fact that the respondent party had been incorrectly identified.  According to the Respondent, the Applicant was further notified in a letter of 31 January 2024 from CRC TiME’s legal representative, that he had filed against the incorrect employer, the correspondence reiterating, among other things, that ‘[y]our application has no reasonable prospects of success’, primarily because the Applicant incorrectly identified CRC TiME as his employer instead of the correct employer, the Respondent.   

1. A staff conciliation conference for matter No. U2024/16, was, according to the Commission’s records, held on 2 February 2024.  Matter No. U2024/16 was discontinued on that day.

1. Whilst appreciative that the Applicant made his first unfair dismissal application (matter No. U2024/16) within the statutory period, I have found that the circumstances surrounding the making of the Applicant’s second unfair dismissal application, which was made 104 days outside of the statutory period are not exceptional, and therefore I do not consider it fair and equitable that time should be extended. It follows that I decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[8] to this effect will be issued with this decision. 

1. Extension of time

1. For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application 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)   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.

1. Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[9]  It is accepted that 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, can be considered exceptional.[10]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

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.[11]

1. At the commencement of the hearing on 22 May 2024, the parties were informed of s 394(3) and factors (a)-(f), in addition to the meaning to be attributed to the term, ‘exceptional circumstances’.

1. Reason for the delay

1. In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[12]  The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[13]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[14]  However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[15]

1. The Applicant’s last day of employment was 15 December 2023, and his unfair dismissal application was made on 18 April 2024, some 104 days late. 

1. In respect of the reasons for the delay in making his unfair dismissal application, the Applicant referred to two reasons.  First, he had made his original application within the statutory timeframe against an entity who he considered to be his true employer.  Second, as was evinced in his WorkCover form prepared by his general practitioner on 16 January 2024, he was still suffering from mental health issues more than a month after his dismissal.  The Applicant’s mental health issues were said to have significantly reduced his capacity to identify that he had lodged his application against the incorrect employer, and to rectify the error. 

1. Turning to the latter reason first.  It is accepted that an applicant’s medical condition can be so significant that it affects their mental capacity to prepare and file an application with the Commission.  However, much may turn on the evidence adduced to support such proposition.  In Underwood v Terra Firma Pty Ltd,[16] the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making  the application within 21-days.  The Full Bench affirmed the findings that the medical evidence relied upon ‘did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame’, and that no exceptional circumstances were established.[17]

1. The Applicant’s materials included a document titled ‘Workcover WA – Progress certificate of capacity’ (Workcover Certificate).[18]  The Workcover Certificate confirmed that the date of the Applicant’s assessment was 16 January 2024 and that having had his contract terminated on 14 December 2023, effective 15 December 2023, the Applicant had suffered an ‘acute stress response’.  Further details of the Applicant’s symptomology were detailed as was the Applicant’s incapacity for work from 16 January 2024 to 15 February 2024.  

1. Whilst the Applicant was assessed as unfit for work during the abovementioned period (16 January 2024 to 15 February 2024), it is apparent from the Commission’s records that as of 1 January 2024, the Applicant was able to make an unfair dismissal application in matter No. U2024/16 at a time where the Workcover Certificate indicates that the Applicant was receiving ongoing ‘psychology’, and as of 1 February 2024, the Applicant participated in a staff conciliation conference before the Commission in respect of matter No. U2024/16.  Thereafter, the Applicant discontinued his application against CRC TiME, whilst all the while being incapacitated for work.  At hearing, the Applicant gave viva voce evidence that during the period of the delay, he was going through a Workcover claim and the investigation into this claim had been delayed, as was the assessment.  This had, said the Applicant, contributed to levels of insomnia and depression – leading to mental exhaustion. 

1. Whilst sympathetic to the Applicant’s difficulties at this time, in the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[19]  In this case, there is no clear medical evidence showing that the Applicant’s mental health issues incapacitated him such that he was unable to make a further unfair dismissal application until 18 April 2024.  

1. The Applicant’s evidence suggests that he was alerted to the issue regarding the correct employer as early as January 2024.  The Applicant submitted that Dr Boggs, in responding to matter No. U2024/16, advised the Applicant that the respondent had been incorrectly identified as CRC TiME Ltd.  Thereafter, the Respondent submits that as of 31 January 2024, CRC TiME had written to the Applicant alerting him that he had filed his application against the incorrect employer and that the correct employer was the Respondent. 

1. By way of observation only, the Applicant’s Workcover Certificate, identifies the ‘employer’ as the Respondent.  That is, as of 16 January 2024, the assessing medical practitioner had been led to believe that the Applicant’s employer was the Respondent. 

1. As of 2 February 2024, there is indefatigable evidence that the Applicant had erred in naming CRC TiME as the respondent in his first unfair dismissal application – given the discontinuance of matter No. U2024/16.  I find that has of 2 February 2024, at the latest, the Applicant was aware that his former employer was the Respondent. 

1. Armed with this knowledge, it is not apparent on the evidence adduced that the Applicant took any steps over the course of some two and a half months to pursue his second unfair dismissal claim.  As of 2 February 2024, it was within the Applicant’s capacity to understand that any new unfair dismissal application would, by this time, be late, and yet the evidence demonstrates no sense of urgency on behalf of the Applicant to lodge a new application.  Were it the case that I accepted that the Applicant was incapacitated as of 2 February 2024 – noting that his Workcover Certificate, certified him as incapacitated for ‘work’ up until 15 February 2024, it remains that there are 63 days in the delay period unaccounted for other than by the Applicant’s assertion that at this time he was afflicted with mental health issues, albeit significant. 

1. Compounding this apparent lack of urgency is perhaps the point, as was highlighted in the Respondent’s submissions, that the Applicant could have largely replicated his previous application against CRC TiME, with just the need to change the Respondent identity, and submitted his second unfair dismissal application at an earlier date.[20]

1. The Applicant’s submissions in seeking to justify his out of time application appear to place reliance on his health.  However, unfortunately from 15 February 2024, the Applicant’s submissions concerning his health do not appear to rise greatly above the level of assertion without further supporting evidence.  The Workcover Certificate is limited by its terms as an assessment of the Applicant’s capacity to work for the period 16 January 2024 to 15 February 2024.

1. Therefore, I am unable to accept that the Applicant has provided an acceptable explanation for the period between the date of 16 February 2024 and the date on which this application was made, which was 18 April 2024. 

1. Accordingly, I do not consider the reasons relied upon by the Applicant, individually or together, to be an acceptable or reasonable explanation for the whole period of the delay.  Whilst, up until 15 February 2024, the Applicant has provided plausible reason for the delay, albeit I again observe his engagement in matter No. U2024/16, I am not similarly persuaded that a credible reason justifies the remainder of the delay.  It is the absence of an acceptable explanation for the remainder of the delay period, which weighs against a conclusion that there are exceptional circumstances.  In arriving at my finding, I have considered the delay as the period beyond the 21-day period.

3.1      Whether the person first became aware of the dismissal after it had taken effect

1. I am of the view that the Applicant became aware that his employment had ended on 15 December 2024.  In all of the circumstances, I consider this to be a neutral consideration, not weighing against or toward a finding of exceptional circumstances. 

3.2      Action taken by the person to dispute the dismissal

1. It is not in dispute, and I so find, that the Applicant did not take any action to dispute his dismissal prior to making his first unfair dismissal application on 1 January 2024 or before his second unfair dismissal application thereafter on 18 April 2024 (at which time the 21-day time limit had passed).  Whilst apparent that the Applicant had made a workers’ compensation claim, I do not consider this constitutes action to dispute his dismissal.  It follows that this factor does not weigh in favour of a conclusion that there are exceptional circumstances or against.

3.3      Prejudice to the employer

1. In my view, it is not apparent that the Respondent will suffer any prejudice were an extension of time granted.  However, it is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[21]  I consider that the factor of ‘prejudice’ in this case is a neutral consideration in all the circumstances. 

3.4      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[22] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[23]

1. Evidence on the merits is rarely called at an extension of time hearing.  As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[24]  The merits of the application more generally would need to be scrutinised.  This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. 

1. The Respondent provided a copy of the Applicant’s contract of employment, which relevantly set out the following:

1.   Term of Appointment

Your full time employment will commence on 17 October 2022 for a fixed term period expiring on 16 October 2025. 

Circumstances for use of fixed term contract: External funding

You will be directly responsible to Chief Executive Officer, Guy Boggs for the overall performance of your duties.

…

Your appointment will be subject to a probationary period of six months in the first instance.  While on probation the notice period will be two weeks and thereafter one month.  Please access information relating to Probation…

1. The Respondent presses that the Applicant was employed on a fixed-term contract, which stipulated that the continuation of his employment was contingent upon the availability of funding for the position from CRC TiME, and that the Respondent had no authority over CRC TiME’s decisions regarding resource allocation.  Whilst the Respondent characterises clause 1 as stipulating ‘that the continuation of his [the Applicant’s] employment was contingent upon the availability of funding for the position from CRC TiME’, clearly that is a matter of construction and is, perhaps, dependent on the calling of evidence and further submission.  On at least one reading of clause 1 and the contract, it is difficult to discern where it expressly permits the early termination of the employment contract on the basis of the withdrawal of external funding.  However, the employment contract does allow termination of employment with one month’s notice. 

1. The Applicant essentially presses that he was dismissed within the meaning of s 386(1) of the Act and gave evidence that he held longstanding grievances against the Chief Executive Officer and as such, the Chief Executive Officer had purportedly engaged in conduct to pressure him to resign. It would appear that the Applicant’s contention is that the withdrawal of funding for his position, was but a mere ruse to remove him from his role. As noted, it is not expected at this stage that the merits of the application or perhaps a jurisdictional objection to the same, would be fully explored.

1. I find that there are facts which are the subject of dispute that could only be tested at a hearing on the merits.  Whilst I do not consider that the Applicant’s application falls into the category of cases which have overwhelming merit, and it is clear that the facts of this matter would be the subject of significant contest at hearing, it is not the case that the Applicant’s case has no merit.  Equally, the same can be said for the Respondent’s case.  Accordingly, the weight to be given to this factor is limited. 

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

1. The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[25]

1. Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position, weighs strongly in favour of either party, and, as such, I consider it a neutral consideration. 

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

1. On balance, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making his application, although part is explained.  Whilst appreciative that the Applicant made his first unfair dismissal application within the requisite statutory period, he delayed making the second application in circumstances which I have found to be unexceptional based on the evidence before me.  This is not to detract from the Applicant’s assertions of the difficulty he experienced from 15 February 2024 until the time he made the second application. The remaining matters I need to consider tell neither for nor against the application for an extension of time.  In these circumstances, having considered all submissions, I am not convinced there are exceptional circumstances such that an extension of time should be granted.  Further, having considered each of the statutory criteria and all the circumstances of the matter, and having determined the circumstances were not exceptional, I am not satisfied that it is fair and equitable to grant the extension. 

1. The application was made outside the time limit imposed by the Act, and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mark Killmier, the Applicant
Georgina Rosendorff of the Respondent

Hearing details:

2024
Perth (by telephone):
22 May.

[1] [2022] FWCFB 234. 

[2] Ibid [17].

[3] Applicant’s Outline of Submissions, 59 [1].

[4] Digital Hearing Book, 74 (DHB). 

[5] Ibid. 

[6] Respondent’s Outline of Submissions, [5] 80. 

[7] Ibid [6].

[8] PR775403.

[9] (2011) 203 IR 1, 5 [13] (Nulty).

[10] Ibid 6 [13].

[11] (2018) 273 IR 156, 165 [38] (emphasis in original).

[12] Ibid 165 [39].

[13] Ibid.

[14] Long v Keolis Downer (2018) 279 IR 361, 371 [40].

[15] Shaw v Australia and New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12].

[16] [2015] FWCFB 3435. 

[17] Ibid [16].

[18] DHB (n 4) 62.

[19] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.

[20] Respondent’s Outline of Submissions (n 6) [21].

[21] Caire v Imscan Technologies[2013] FWC 3154, [16].

[22] (1997) 140 IR 1.

[23] Ibid 11.

[24] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].

[25] [2015] FWC 8885, [29].

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