Mr Michael Mawson v Taipan Pty Ltd

[2021] FWC 639

[2021] FWC 639

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Mawson
v
Taipan Pty Ltd
(U2020/13435)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 MARCH 2021

Application for an unfair dismissal remedy – Application filed outside time required in s.394(2) – Medical evidence – Exceptional circumstances established – Further period to make application granted.

Introduction

[1] Mr Michael Mawson (the Applicant) applied under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by Taipan Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that his employment was terminated on 20 April 2020 and that the termination took effect on that date. There is no dispute from the Respondent as to the date of termination and its effect.

[2] The application was filed with the Commission on 9 October 2020. By virtue of s.394(2) of the FW Act, an application under s.394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). On the basis that the employment relationship was terminated on 20 April 2020, the application was required to be made by midnight on 11 May 2020. The application was made 151 days outside the time required in s.394(2) of the FW Act.

[3] On 22 October 2020, correspondence was sent to the Applicant from the Chambers of Vice President Catanzariti seeking that the Applicant provide reasons as to why an extension should be granted having regard to the matters in s.394(3) of the FW Act, and for the Respondent to file a Form F3 – Employer Response to the application. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. The Directions indicated that in the absence of any request for a hearing, the application for an extension of time would be determined on the papers. Both parties have advised the Commission that they agree to that course.

[4] While it appears that there is likely to be a dispute in relation to facts should the matter proceed to arbitration on the merits, the facts as are relevant to the extension of time are not in dispute. None of the witnesses were required for cross-examination. I did not consider it necessary to hold a hearing 1 and decided to determine the extension of time issue on the papers. The parties filed a significant amount of material including numerous reply submissions. I have had regard to all of the material filed.

[5] The Applicant seeks permission to be represented by Ms Sharifah Al-Edrus of Susan Moriarty & Associates. The Respondent seeks permission to be represented by Mr Paul Everingham of Everingham Lawyers. To the extent it is required, given that I have not conducted a hearing at this stage, I grant permission pursuant to s.596 of the FW Act for both parties to be represented on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently and no issues of fairness arise. I am also of the view that the application raises some issues of complexity.

[6] On 15 March 2021, I issued an Order granting a further period for the Applicant to make his application on the basis that I was satisfied that there were exceptional circumstances having regard to the matters in s. 394(3) of the FW Act. My reasons for this decision are set out below.

Extension of time

[7] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 2 Exceptional circumstances may include a single exceptional factor, 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.3

[8] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[9] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[10] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

Consideration

Reason for the delay

Evidence and submissions in relation to reasons for the delay

[11] The focus of the evidence and submissions of the parties in this matter was the reason for the delay in the Applicant lodging his application. The reason for the delay advanced by the Applicant is incapacity resulting from the Applicant suffering from a number of medical conditions including seizures, clinical depression and Post Traumatic Stress Disorder (PTSD). The Applicant states that on 21 April 2020, the day after his dismissal took effect, he suffered 11 seizures and was admitted on an emergency basis to the Caboolture Hospital. The Applicant tendered a discharge report from the Caboolture Hospital stating that a stressful day at work led him to having 6 tonic-clonic seizures in one night with resulting right size weakness which was diagnosed as Todd’s Paresis.

[12] The Applicant also said that during this period following his initial hospital admission, he was taking prescribed medication. The Applicant provided details of this medication which it is not necessary to set out. The Applicant said that for up to eight weeks after commencing this medication, he experienced side effects including loss of clarity of thought and “fogginess”.

[13] The Applicant states that following this “seizure event” he suffered various other medical episodes. The Applicant was again admitted to Caboolture Hospital on 3 May 2020 for clinical depression and Post-Traumatic Stress Disorder (PTSD). The discharge summary of 6 May 2020 tendered by the Applicant stated that:

“[o]n assessment Michael reports overwhelming recent life stressors whereby he was sacked from his job without perceived due cause and relationship discord as his wife continues to work at the company [Taipan], which makes him feel betrayed. He has been experiencing extreme stress and developed a seizure disorder resulting in hospitalization... and as a result he cannot drive a car for six months. Michael present with flat affect, he reports with a depressive illness and helplessness”. 4

[14] The Applicant states that the medical suspension of his driver’s licence was due to be removed on 21 October 2020, however his neurologist extended the suspension to 9 December 2020, subject to the condition that he remained seizure-free until then. The Applicant also stated that on 6 May 2020, he had an EEG scan at Prince Charles Hospital which showed he had developed a blood clot over the left temporal region of his brain linked to the seizures, for which he required follow up treatment.

[15] The Applicant states that between 7 May and 17 June 2020, he did not have any capacity to seek legal advice or provide any instructions to a legal representative. His evidence is that during this period, he was taking various medications for his conditions which had sedative and muscle relaxing effects. 5

[16] On 17 June 2020, the Applicant was admitted to Pine Rivers Mental Health Hospital because of clinical depression and PTSD. He was discharged after 6 weeks, on 27 July 2020. During that time the Applicant received Transcranial Magnetic Stimulation treatment for depression which caused him to experience headaches ranging from mild to severe after each treatment.

[17] The Applicant states that between these major episodes as outlined, he was required to attend various medical appointments to monitor his neurological and mental health and was prescribed medication which affected his cognitive ability. The Applicant provided the following chronology in support of the delay in filing his application: 6

Date

Event

20 April 2020

Termination

21 April 2020

Emergency admission to Caboolture Hospital due to multiple seizures

23 April 2020

Discharge from Caboolture Hospital

3 May 2020

Second admission to Caboolture Hospital due to clinical depression and PTSD

6 May 2020

Discharge from Caboolture Hospital

6 May 2020

First EEG at Prince Charles Hospital to follow-up on seizures

8 May 2020

GP appointment

11 May 2020

Transitional Care appointment at Caboolture Hospital

12 May 2020

GP appointment for referral to various medical specialists

14 May 2020

Psychologist appointment

19 May 2020

Psychiatrist appointment – Formal diagnosis by treating psychiatrist

19 May 2020

Psychologist appointment

20 May 2020

GP appointment

21 May 2020

Psychologist appointment

28 May 2020

Psychologist appointment

9 June 2020

Psychiatrist appointment

10 June 2020

Psychologist appointment

17 June 2020

Admission to Pine Rivers Private Mental Health Hospital (PRPH)

22 July 2020

Neurologist appointment

27 July 2020

Discharge from Pine Rivers Private Mental Health Hospital (PRPH)

28 July 2020

(PRPH) Day Program Therapy (this day program was weekly from the

21/07/2020)

4 August 2020

(PRPH) Day Program Therapy

8 August 2020

Second EEG at Prince Charles Hospital

11 August 2020

(PRPH) Day Program Therapy

18 August 2020

(PRPH) Day Program Therapy

25 August 2020

(PRPH) Day Program Therapy

1 September 2020

(PRPH) Day Program Therapy

8 September 2020

(PRPH) Day Program Therapy

15 September 2020

(PRPH) Day Program Therapy

22 September 2020

(PRPH) Day Program Therapy

3 September 2020

Psychologist appointment

3 September 2020

The Applicant sought legal advice in relation to dismissal

15 September 2020

The Applicant sought employee records from Taipan to confirm if there were any complaints against the Applicant which led to his dismissal

25 September 2020

Employee records provided to the Applicant

28 September 2020

Applicant sought medical reports from treating psychiatrist to support reason for delay in making unfair dismissal application

7 October 2020

Applicant received medical report from treating psychiatrist

[18] The Applicant states that between 27 July and 2 September 2020, he was focussed on his recovery and attended weekly therapy sessions and specialist appointments as outlined in the above chronology. The Applicant continued to take a range of prescribed medications causing side effects including tiredness, loss of clarity of thought, feeling flat and little ability to concentrate. The medical report provided by the Applicant’s treating psychiatrist on 7 October 2020 and tendered by the Applicant stated: 7

•  The Applicant is diagnosed with major Depressive Disorder as he met several criteria for this diagnosis including depressed mood most of the day, nearly every day, and diminished ability to think or concentrate;

•  The Applicant is also diagnosed with PTSD as he showed many signs, including “avoidance of thoughts, feelings, or physical sensations that bring up memories of the traumatic event” and difficulty concentrating;

•  The medications prescribed for the Applicant are “psychotropics and would have affected his cognitive ability in several ways”; and

•  The Applicant’s mental state has remained unstable throughout his care prior to and during his in-patient stay and it was during the review on 8 September 2020, when the Doctor first felt that the Applicant was sufficiently regaining his capacity to re-engage in litigation in relation to his dismissal.

[19] The treating psychiatrist also stated in the Report that:

“In my view, Mr Mawson suffered several mental illness in the form of Major Depression and Post Traumatic Stress Disorder. Both of these illnesses cause impaired concentration, invectiveness, pessimistic cognitions and an altered mental state. All of these factors will contribute towards his lack of capacity to engage in litigation while suffering from all of the symptoms mentioned above”.

[20] The Applicant states that on the basis of the medical evidence, between the time of his dismissal up until or around September 2020, he was not fit or in any capacity to consider actions available to contest the dismissal. The Applicant states that particularly between his dismissal on 20 April 2020 and the date by which his application was due to be filed on 11 May 2020, he did not have any capacity to file a claim in the Commission or to seek legal advice or otherwise provide instructions to a legal representative. The Applicant also annexed to his initial statement in these proceedings a medical certificate which certified that he was “totally incapacitated” and “unfit from duty up to and including 22 May 2020”. 8

[21] The Applicant states that on his wife’s observations, as set out in her witness statement in these proceedings, 9 it is likely that he started suffering from a mental impairment from as early as 23 April 2020, prior to his formal diagnosis of depression and PTSD during his admission at the Caboolture Hospital from 3 May 2020.

[22] The Applicant stated that on 3 September 2020, he sought legal advice from Susan Moriarty & Associates regarding his dismissal. He also stated that from 4 September to 14 September 2020, he had begun “volunteer work with Meals on Wheels, attended appointments with my psychologist (two appointments), psychiatrist and neurologist and continued with the outpatient group sessions at Pine Rivers Private Hospital”. The Applicant said that during this period, he continued his prescribed medication regime and continued to experience side effects from the medications. 10 The Applicant also stated that around September 2020, when he and his treating psychiatrist noticed improvements in his condition, he then took reasonable steps towards disputing the dismissal.

[23] The Applicant contended that he did not have any cognitive ability to make decisions or seek help in relation to his dismissal until “some time” in September 2020, which would account for approximately 121 days of the 151 days his application is out of time. The Applicant states there was also an 11 day waiting period from the time he made a request for his employee records from the Respondent on 15 September 2020, to the time he received them on 25 September 2020. The Applicant stated that he required the employee records to determine whether there was a legitimate reason for his dismissal and to ensure that his claim for unfair dismissal had prospects of success. The Applicant also said that there was a further waiting period of 10 days, when he made a request for a medical report from his treating psychiatrist on 28 September 2020 to the day he received it on 7 October 2020. The Applicant’s evidence was supported by a witness statement filed by his wife, Mrs Mawson. Her evidence confirmed the Applicant’s timeline of treatment and other medical events, including the effects of his various prescribed medications.

[24] The Applicant submitted that when these matters are taken into account he has provided, credible reasons for 142 days of the delay in making his application and relies on the position at law that “the person exercising the discretion has to make an overall judgment as to the appropriateness of extending time”, 11 and as such, other factors, in addition to the extent and cause of the delay, may also be considered. In support of the grant of a further period the Applicant cited the case of Dan Beard v Valley Industries Limited,12 where the Commission accepted the applicant’s contention that as a result of “significant deterioration in his mental state shortly after his dismissal, he was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal”.

[25] In relation to the reasons for the delay in lodging the Application, the Respondent submitted that the Applicant obtained legal advice from Susan Moriarty & Associates Solicitors on 3 September 2020, but no application was filed in the Commission until 9 October 2020. The Respondent also submits that the Applicant attended the consultation with Susan Moriarty & Associates with his wife. The lawyers consulted are experienced in this area of the law, and it should be inferred that the Applicant was advised of the limitation requirements of the Act and that the matter was well out of time. It should also be inferred that the Applicant was advised that it was imperative that the termination be challenged at an early date. In this regard, it was submitted that the Applicant does not allege representative error on the part of his solicitors.

[26] Further, the Respondent submitted that the records sought from the Respondent were sought on 15 September 2020 and provided on 25 September 2020; yet the application was not filed until 9 October 2020. For the period after 25 September 2020, the Respondent noted that the Applicant seeks to explain this delay by reference to his request for a medical report on 28 September 2020 and the date of its receipt being 7 October 2020. The Respondent submitted that this further delay lacks credibility since the Applicant and his wife were well aware of the treatment and medication involved in the management of mental health issues which are alleged to have arisen shortly after the termination of employment.

[27] The Respondent also emphasised the requirement for a credible explanation for each part of the period of delay. In this regard, the Respondent submits there is no credible explanation for the length of time between the consultation with Susan Moriarty & Associates on 3 September 2020 and the filing of the application on 9 October 2020. Therefore, the Respondent submits that in all the circumstances, exceptional circumstances have not been made out and the application for an extension of time should be refused.

[28] In submissions in reply, the Applicant referred to the medical report produced by his treating psychiatrist on 6 October 2020 and contended that this report is inconclusive of an exactdate the Applicant re-acquired the cognitive ability to engage in litigation. The Applicant stated that his treating psychiatrist was able to estimate a time-period whereby “an improvement” was visible, being on or around 8 September 2020.

[29] The Applicant also stated that at the time of the initial consultation with Susan Moriarty & Associates on 3 September 2020, he relied on his wife, who was present, to provide instructions. The Applicant formally retained that firm on 14 September 2020. The Applicant stated that in the period between 3 September 2020 and 14 September 2020, his condition was observed to be improving, however, as above, there is no exact date as to when he “positively re-acquired the cognitive ability to take active steps in relation to his dismissal”.

[30] With specific reference to the period between 25 September and 9 October 2020, the Applicant asserted that the request and receipt of employee records was a necessary preliminary step for him to ascertain whether any records or evidence provided a legitimate or lawful explanation for his summary dismissal.

[31] The Applicant said this was also necessary as the Respondent had never advised him of particulars of any complaints against him, conduct or performance issues at any time during his employment, including at the termination meeting. The Applicant said that in verifying that there was no lawful reason to summarily dismiss him, he also ensured he was not instituting his claim vexatiously or without reasonable cause. The Applicant requested those records on 15 September 2020 and received them on 25 September 2020.

[32] As to the delay caused by the request and receipt of the medical evidence, the Applicant submitted that notwithstanding that it was apparent to him and his wife that he was unwell, only a medical expert would be able to properly advise the Commission of his health. Absent expert medical evidence, the Commission has been be reluctant to recognise medical impairment as a credible reason for delay. The Applicant also submitted that he has provided medical evidence to support his contention that his incapacity provides a reasonable explanation for the delay in making his application, in contrast with other cases where such evidence was not provided. 13The Applicant submitted that notwithstanding his position that there were credible explanations for the whole of the delay, it is not fatal should there not be an explanation for any part of the delay. The Applicant submitted that, when the circumstances surrounding the delay are viewed in totality, the Commission ought to find that there were exceptional circumstances in the present case.

[33] In reply submissions, the Respondent contended that no affidavit material has been provided by a lawyer from Susan Moriarty & Associates to deny that the Applicant and his wife were put on notice that the Applicant was well out of time and that he needed to move quickly if he was to make an unfair dismissal application. The Respondent also submitted that the Applicant had raised for the first time in his reply submissions that the firm was not formally retained until 14 September and noted that it took another 25 days for the application to actually be filed.

[34] The Respondent submitted that the time taken to acquire the psychiatric report is not credible and that evidence to confirm the Applicant’s condition was not necessary for the application to be filed in the Commission, as medical reports could be filed or tendered after the proceedings had commenced. The Respondent also submitted that the fact that during the period between the first legal advice and the filing of the application, the Applicant’s health was still improving is irrelevant. The Applicant had lawyers expert in this area of law and the Applicant’s wife was present with him at the consultation on 3 September 2020. The Respondent submitted that there is no suggestion that the Applicant’s wife was suffering from any impairment which inhibited her understanding of the legal position.

[35] Therefore, the Respondent submitted that there is no credible explanation or excuse for why the Applicant and his lawyers waited until 9 October 2020 to file and serve the unfair dismissal application.

Assessment of reasons for delay

[36] The delay required to be considered in s.394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period. 14 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.15

[37] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 16

[38] It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. It is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay. As a Full Bench of the Commission explained in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 17

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[39] In the present case, I am satisfied that the Applicant has provided a reasonable explanation for the delay in filing his application. It is not in dispute that the Applicant’s employment was terminated on 20 April 2020. The Applicant has established that he suffered diagnosed medical conditions which completely incapacitated him for most of the period of the delay. The Applicant tendered medical certificates from his treating medical practitioners to support his contentions in this regard. The medical evidence provides insight into the extent to which the Applicant was incapacitated during the 21 day period following the termination of his employment and for most of the period up to the filing of his application.

[40] Loss of employment is a significant event in the lives of most people and where it is involuntary, will usually cause distress. Such distress may impact on a person’s ability to lodge an unfair dismissal application within 21 days of the dismissal taking effect. Distress of this kind is unfortunate, but not of itself exceptional. However, where distress manifests as a diagnosed medical condition, supported with appropriate evidence establishing lack of capacity, or diminished capacity, to make an unfair dismissal application within the required time, it may be a reasonable explanation for delay.

[41] In the present case, the extent of the Applicant’s incapacity was well beyond the usual distress suffered by a person who is dismissed and manifested as clinical depression and PTSD. The Applicant also suffered from a debilitating neurological condition. The 21 day period following the Applicant’s dismissal ran from 21 April to 2 May 2020. The Applicant was admitted to hospital on 21 April 2020 (the day after his dismissal and when the period for filing the application in time commenced) having suffered tonic-colonic seizures. Upon release from hospital on 23 April 2021, the Applicant was taking medication to manage the seizures and had an ongoing weakness in his right side resulting from the seizures. The Applicant was taken to the Caboolture Hospital Mental Health Unit for mandatory observation on 2 May following an event where police and ambulance officers were required to subdued him. The Applicant was hospitalised from 3 to 6 May for treatment for clinical depression and PTSD. Upon discharge the Applicant was reported as suffering, among other conditions, from a depressive illness and feelings of helplessness.

[42] On 6 May 2020, the Applicant was also diagnosed with a blood clot over the left temporal region of his brain which was linked to his seizures and required treatment for this condition. I am satisfied that the serious neurological and mental health issues suffered by the Applicant for the 21 day period following his dismissal provide a reasonable explanation for his failure to file his application within time. I also accept that the medication the Applicant was taking, and the ongoing effect of those medications, incapacitated him to the point where he was unable to make an unfair dismissal application in the 21 day period following his dismissal. As a result, the Applicant has a reasonable explanation for failing to make such application within that period.

[43] The evidence also establishes that the Applicant was continuously incapacitated from 11 May 2020 (the date by which his application could have been filed within time) until 8 September 2020. During that time the Applicant was an in-patient in a psychiatric institution for 6 weeks undergoing intensive treatment which had side effects as described in his evidence, indicating the degree of his incapacity. The Applicant also continued to take medications during this period which affected his cognitive ability. The Applicant’s treating psychiatrist stated that it was not until a review he conducted on 8 September 2020, that he felt that the Applicant was sufficiently regaining his capacity to re-engage in litigation in relation to the dismissal. The medical evidence does not establish that the Applicant had capacity on any particular date, and it is probable that at least some of the effects of his medical conditions and medication continued to manifest at this time.

[44] It is true that the Applicant sought legal advice on 3 September, and that he should have been advised to file his application immediately and that further information to support it could have been provided later. It may have been prudent for the Applicant to file his application immediately and not to have taken the course of waiting for further material to support his application. It is unclear as to whether the Applicant was advised to take this course by his legal representatives. However, in the circumstances where the delay was already considerable at the time the legal advice was sought, it was not unreasonable for the Applicant to seek medical evidence to support the grant of a further period to make the application. That the Applicant’s wife was supporting him at the time he first consulted lawyers is not to the point. The Applicant was required to file an application or to give instruction to his representative to do so, and the involvement of the Applicant’s wife is immaterial and does not detract from the reasonableness of the explanation for the delay in making the application.

[45] As the Applicant correctly notes, he is not required to provide a reasonable explanation for the entire period of the delay in order to establish exceptional circumstances justifying a further period being granted. The Applicant has provided an explanation for most of the delay and the circumstances outlined in that explanation are unusual and out of the ordinary and this weighs in favour of a further period being granted.

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

[46] It is not in dispute that the Applicant became aware of the dismissal on the date that it took effect – 20 April 2020. In the circumstances of this case, this is a neutral consideration.

Any action taken by the person to dispute the dismissal

[47] The Applicant states that he made enquiries regarding the dismissal at the termination meeting of 20 April 2020, however was not provided with adequate reasons for his dismissal and was not able to dispute the dismissal at that time. The Applicant also stated he had requested a meeting to be held the next day, which he believed would be to discuss the reasons for the dismissal and to provide his responses to those reasons and to challenge the dismissal. The Applicant said that it was his belief that after further discussion with Mr Sandilands “the termination would not be required.” The Applicant said that he had the intention of raising more questions with the Respondent in protest at the dismissal but was unable to attend this meeting due to suffering multiple seizures on 21 April 2020. The Applicant says that the meeting was subsequently cancelled by Mr Sandilands.

[48] Further to the medical reasons as outlined above, the Applicant confirmed that he then sought legal advice on 3 September 2020 in relation to the dismissal, and took various preliminary steps including requesting copies of his employee records and the medical report from his treating psychiatrist. This application was filed two days after receiving the report from his treating psychiatrist. The Applicant said that he requested copies of his employment records on 15 September 2020. A copy of the request was not tendered.

[49] The Respondent submits that the Applicant did not take any action to dispute his dismissal until the application was filed on 9 October 2020. Mr Allan Sandilands, Managing Director of the Respondent, provided a witness statement in these proceedings. 18 Mr Sandilands confirms that at the termination meeting of 20 November 2020, the Applicant said that he deserved a better explanation for his dismissal. His evidence confirms that the Applicant said he would like a meeting to discuss these matters the next morning, and Mr Sandilands said that was fine but that he was not changing his decision. Mr Sandilands confirms that the Applicant did not turn up for their meeting on 21 April 2020. He says he heard “very little” until he received an email from the Applicant’s phone at 9.16am on 22 April 2020, whereby the Applicant explained what had happened and that he had suffered seizures, and that he was still looking forward to catching up.

[50] Mr Sandilands tendered the email from the Applicant and his response to that email. In his email the Applicant said that he had suffered seizures and would not be able to drive a motor vehicle for six months which would necessitate him using his sick leave and annual leave and to work from home and ride with his wife to the office when needed. The Applicant’s email concluded with a statement that he knew that he still needed to meet with Mr Sandilands but was looking forward to “setting new ground rules and building on the potential that we (Taipan) have in front of us.”

[51] Mr Sandilands’ response (also tendered by him) stated that the Applicant’s employment had been terminated on 20 April 2020 and that the meeting on 21 April was to be a discussion. Mr Sandilands’ response also stated that he would not be changing the decision to terminate the Applicant’s employment. Further, Mr Sandilands confirmed that the Applicant’s entitlements had been paid on 21 April and that the paperwork had not been forwarded “out of respect” and “until confirming your condition”.

[52] The consideration in s.394(3)(d) is directed in part to whether an Applicant who files an unfair dismissal application out of time, took steps within time to place the employer on notice that the dismissal was contested. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, and in particular action that is taken within the 21 day period after the dismissal took effect, may weigh in favour of granting an extension of time. 19 For example, circumstances where a former employee takes no steps to dispute a dismissal and then emerges from left-field after a lengthy period and makes an unfair dismissal application, may weigh against a further period being granted. Conversely, circumstances where the former employee has acted in a timely manner to place the former employer on notice that the dismissal is contested may weigh in favour of the grant of a further period.

[53] In the present case, the Applicant’s email of 22 April 2020 evidences a lack of understanding that he had been dismissed and an intention to continue discussions. It does not evidence that the dismissal is disputed. It may be that the communication of 15 September 2020 in which the Applicant sought his employment records so that he could obtain legal advice placed the Respondent on notice that the Applicant was disputing his dismissal. However, in circumstances where this communication is not in evidence, I am unable to draw a conclusion on this point. In any event, I consider that even if the request for information on 15 September put the Respondent on notice that the dismissal was challenged, this did not occur until 148 days after the application was required to be filed if it was file within time. This weighs against the grant of a further period.

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

[54] The Applicant submits that the onus is on the Respondent to “produce evidence to demonstrate prejudice”. 20 The Applicant also submits that there would be no prejudice to the Respondent because:

a. The dismissal occurred in 2020.

b. Mr Sandilands and Ms Tianah Ede, HR Manager, who were present at the termination meeting and were the parties involved in making the decision to dismiss the Applicant, are still employed with the Respondent.

c. Pursuant to the Respondent’s obligations under the FW Act and Fair Work Regulations 2009, the Respondent would still have all records pertaining to the Applicant, including records relating to his dismissal.

d. The Respondent would also likely have records of the alleged complaints from other employees, or records to the same effect, which Mr Sandilands appeared to rely on in dismissal the Applicant from his employment.

[55] The Applicant says therefore, the matter does not involve a significant effluxion of time such that the relevant witnesses are no longer with the company or the relevant documents are no longer in existence. 21

[56] In its initial submissions, the Respondent claimed no specific prejudice, however submitted there is the general unfairness which is occasioned by an application coming after almost 6 months. However, in reply submissions the Respondent contended that the Applicant’s lengthy reply material introduces evidence as to numerous interactions or conversations the Applicant claims to have had with persons other than the Managing Director. The Respondent submits therefore, responding to the material will require the Respondent to undertake the onerous task of interviewing and taking statements from those persons many months after the event. The Respondent submitted that asking people to recall the text of conversations many months later is asking much of people who, at the relevant times, had no reason to think they may have to recall the conversations. The Respondent submits the “trail is now very cold” due to the Applicant’s tardiness in bringing the application.

[57] Prejudice to the employer will weigh 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”.  22 In this case, the length of the delay in filing is 151 days, a significant period of time. However, I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. While there has been a delay of almost 6 months as raised by the Respondent, the delay is not so extensive that there would be any difficulty involving recollection of events or availability of relevant witnesses. The Respondent may not be required to call all of the witnesses on the list of possible witnesses it provided in its submissions with respect to prejudice and there is no evidence that any of those persons have left the employment of the Respondent.

[58] In all of the circumstances, this is a neutral consideration.

The merits of the application

[59] In the matter of Kornicki v Telstra-Network Technology Group, 23 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.” 24

[60] The Applicant notes that the reasons for termination of his employment were allegations that:

a. The Applicant’s behaviour “contributed to a downturn in staff morale, motivation and affected business operations”; and

b. “There is something in [the Applicant’s] delivery and or approach that just isn’t taken well”.

[61] The Applicant submits that he was not provided with particulars or evidence in support of these allegations, nor was he provided any information on how his alleged conduct breached company policy, procedure or law such that it warranted a summary dismissal.

[62] The Applicant submits that his case has strong merits, in circumstances where:

a. There was no proper explanation for the dismissal provided by the Respondent;

b. No evidence or particulars of incidents were provided to the Applicant;

c. The Applicant was not afforded an opportunity to respond; and

d. The dismissal occurred without any warning given to the Applicant that his job was at risk.

[63] The Applicant submits that further to the request for his employee records, those records did not show any record or history of complaints, warnings or performance management processes against the Applicant in relation to the alleged conduct forming the basis of the dismissal. The Applicant submits that his case appears to be highly meritorious and that this should persuade the Commission to accept the adequacy of an explanation for the delay.

[64] The Respondent relies on witness statements filed by Mr Sandilands, Mr Troy Mattson (Warehouse Manager for the Respondent), Mr Paul Dow (Parts Manager for the Respondent) and Mr Neil Macleod (Operations Manager for the Respondent) in support of there being a valid reason for the dismissal of the Applicant and that the Applicant had in the months leading up to his dismissal been spoken to by the Managing Director, Mr Sandilands, about his abrasive manner and the adverse effects on co-workers. The Respondent submits that at best for the Applicant, this is a neutral factor.

[65] The only thing that is clear is that the parties are in dispute about the merits of the application and that it appears there will be a genuine contest of the facts at hearing. I consider this factor to be neutral. It is also apparent that there is a further jurisdictional objection based on the Respondent’s assertion that the Applicant earned above the high income threshold and is not a person protected from unfair dismissal on that basis. This is also a matter that will require further evidence. At present, there is insufficient evidence before me to find other than that the Applicant’s case is not without merit.

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

[66] As to this criteria, the Applicant submits that it would be unfair if the Commission does not accept his contention as to cognitive impairment as a credible reason for the delay and as an ‘exceptional circumstance’, and relies on the Valley decision as referred above.

[67] The Respondent submits that it is a medium sized business which operates in a highly competitive environment. The Respondent submits that it would be unfair for it to be confronted with an application for an unfair dismissal remedy 172 days after the dismissal when the law requires that such a claim be filed within 21 days. The Respondent submits that this is particularly so when the long delay in the filing of the Applicant’s claim was not, on the evidence, caused by any act or omission on the part of the Respondent.

[68] In reply submissions, the Applicant noted that the Respondent has provided submissions in relation to fairness to the employer, as opposed to fairness between the Applicant and other persons in a similar position. In response, the Applicant submits that the Respondent is a national company with dedicated in-house human resource support with presumed compliance with its record-keeping obligations in relation to ‘employee records’ as defined in s.12 of the FW Act, which includes information relating to the disciplining of an employee, and the employee’s performance or conduct.

[69] The Applicant submits that the Respondent would not face any unfairness or prejudice in the event the Commission grants an extension of time to the Applicant. The Applicant submits that this criterion is a factor in favour of the Applicant.

[70] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 25 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[71] In circumstances where the Applicant has established, by statements from his treating medical practitioners, that he suffered significant medical conditions which impacted on his ability to make an application in a timely way, I am of the view that it would not be unfair to grant the Applicant a further period. I am also of the view that the grant of a further period in this case would not be inconsistent with other cases where the effect of medical incapacity has been considered. This consideration is neutral in the present case.

Conclusion

[72] Having regard to the matters I am required to take into account under s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or collectively. In particular, the Applicant’s significant physical and mental impairment weigh in favour of a further period being granted. Accordingly, I am satisfied that this is a case in which the discretion to extend time should be exercised.

[73] For these reasons, on 15 March 2021, I issued an order extending the time for the application in U2020/13435 to be filed to 9 October 2020. Further Directions will issue for the hearing and determination of the jurisdictional objection on the ground that the Applicant’s annual rate of earnings exceeded the high income threshold.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726776>

 1   See Fair Work Act 2009 s.397.

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 3   Ibid.

 4   Witness Statement of Mr Michael Mawson filed 12 November 2020, Annexure ‘MM-05’.

 5 Witness Statement of Mr Michael Mawson filed 12 November 2020 at [26].

 6   Witness Statement of Mr Michael Mawson filed 12 November 2020, Annexure ‘MM-02’.

 7   Witness Statement of Mr Michael Mawson filed 12 November 2020, Annexure ‘MM-06’.

 8   Witness Statement of Mr Michael Mawson filed 12 November 2020, Annexure ‘MM-04’.

 9   Witness Statement of Mrs Georgina Mawson filed 12 November 2020.

 10 Witness Statement of Mr Michael Mawson filed 12 November 2020 at [35].

 11   Applicant v Respondent [2012] FWA 2111, [40].

 12   [2020] FWC 4523 at [16].

 13   Elrifai v Demons Formwork & Construction Pty Ltd T/A Demons[2011] FWA 5090 at [7]; Hodder v Kincare [2012] FWA 5082 at [13].

 14   Long v Keolis Downer[2018] FWCFB 4109 at [40].

 15   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 16   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 17   Ibid.

 18   Witness Statement of Mr Allan Sandilands dated 17 November 2020.

 19   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 20   Stockhausen v Damstra Technology[2019] FWC 3285 at [42].

 21   Joanne Boudaher v Lateral Estate Pty Ltd [2020] FWC 5025 at [30].

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

 23   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 24   Ibid.

 25   [2016] FWCFB 6963.