Mr Raymond Kelly v Monash Health
[2025] FWC 291
•5 FEBRUARY 2025
| [2025] FWC 291 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Raymond Kelly
v
Monash Health
(U2024/14675)
| COMMISSIONER WILSON | MELBOURNE, 5 FEBRUARY 2025 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.
This decision concerns an application by Mr Raymond Kelly for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Kelly’s employment with Monash Health ended on Thursday 14 November 2024 and his unfair dismissal application was filed in the Fair Work Commission on Friday 6 December 2024.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Thursday 5 December 2024. The application was therefore filed 1 day outside the 21-day period. Mr Kelly asks the Commission to grant a further period for the application to be made under s.394(3). Monash Health oppose an extension of time being given to Mr Kelly for the filing of his application.
With Mr Kelly’s employment with Monash Health ending on 14 November 2024, the last day for him to file an in-time unfair dismissal remedy application was 5 December 2024. Mr Kelly however did not file his application until the following day, Friday, 6 December 2024 at 11:57 AM, meaning that his application is one day out of time.
The FW Act provides that an extension of time for the filing of an unfair dismissal application may only be granted where the Commission is satisfied there are exceptional circumstances (s.394(3)). For the reasons set out below, I am not satisfied on the material before me that there are exceptional circumstances in Mr Kelly’s case. It follows that I must dismiss his unfair dismissal application.
A determinative conference in respect of the application was held by me on Wednesday 15 January 2025, at which Mr Kelly appeared on his own behalf assisted by his support person, Ms Rachael Nickell. Monash Health was represented by Mr Braden Skeels, an Employee Relations Advisor. Mr Kelly gave evidence on his own behalf and Mr Skeels gave evidence for the Respondent.
BACKGROUND
Mr Kelly worked for Monash Health for slightly more than 10 years, including most recently as a theatre technician. He commenced employment on 21 July 2014 and was dismissed on 14 November 2024.
Before he was dismissed, Mr Kelly formed the view he had evidence of corrupt conduct on the part of other persons working for Monash Health and sought to meet with the organisation’s Chief Executive Officer. It is unclear when exactly Mr Kelly first approached the CEO’s office for a meeting. A meeting was initially arranged, but was subsequently cancelled, shortly after Mr Kelly was dismissed.
On 22 October 2024, Mr Kelly was notified that he was the subject of serious allegations requiring his answer. The allegations were particularised in a lengthy letter to him which explained the need for him to participate in an investigation into five allegations relating to his workplace conduct as well as cautioning him about the seriousness of the allegations. The allegations letter also required him to attend a meeting with the investigator for the purposes of response on Friday, 25 October 2024.
Mr Kelly did not attend that meeting and explained to Monash Health that he was unable to do so because of a doctor’s appointment. Following that advice, Mr Kelly was invited by Monash Health to provide a written response by Monday, 28 October 2024. A meeting was later held on 29 October 2024, with the Applicant, the Respondent, and the Applicant’s support person. Later that day, Monash Health again wrote to Mr Kelly advising that each of five allegations had been substantiated on the balance of probabilities.[1]
The first of Monash Health’s substantiated allegations concerns Mr Kelly’s failure to accept feedback about his performance. The second allegation relates to his treatment of a particular patient. The third allegation concerns inappropriate physical contact with another staff member, classified by Monash Health as sexual harassment. The fourth allegation relates to race-based comments made by Mr Kelly, and finally the fifth allegation concerns findings of aggressive conduct on the part of Mr Kelly in a phone call to another staff member.
The 29 October 2024 notification of findings letter to Mr Kelly invited his response prior to determination of an appropriate disciplinary action. Mr Kelly was given the option of either responding through a meeting nominated to be held on 31 October 2024 or alternatively to provide a response in writing.[2] Mr Kelly chose not to take either option.
Further correspondence to Mr Kelly, dated 14 November 2024, notified him of the outcome of Monash Health’s deliberations of disciplinary action, which was that his employment was terminated with effect from 14 November 2024.[3]
In the determinative conference held by me in relation to consideration of an extension of time for the making of Mr Kelly’s application, he explained that his application came to be lodged out of time for several reasons including his health and expectations about further contact with Monash Health.
In relation to his health Mr Kelly, who is a 72-year-old man, explained that as a result of his dismissal he had become stressed and it was suggested to him that he commence a WorkCover application (which he did not do). In relation to the matter of expecting further contact from Monash Health, Mr Kelly was waiting for advice as to when he could meet with the CEO, presumably not only to raise the matters of corruption that he was concerned about but also to press his view that he had been dismissed because of the matters he was raising.
Mr Kelly became aware of the possibility of making an unfair dismissal application, as well as the statutory time limit associated with the making of such an application when he spoke to the person who was his support person in these proceedings, Ms Rachael Nickell. Mr Kelly was unclear in his evidence as to when he first became aware of the statutory time limit, with it appearing to be the case that he first knew about it either on the day his application was lodged in the Commission or the day before (being the last available day for an in time lodgement).
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
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”. Exceptional circumstances have been defined as 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.[4] Exceptional circumstances may 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.[5]
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.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
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. I now consider these matters in the context of the Application.
CONSIDERATION OF THE s.394(3) CRITERIA
Reason for the delay
The Act does not specify whether a particular reason for the delay might tell in favour, or not 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 the circumstances must be considered.[6]
Mr Kelly has not given a clear narrative of when he decided to commence an unfair dismissal application against his former employer or how his application came to be lodged late. His explanation concerning the delay points to a combination of feeling unwell following the dismissal as well as waiting for an appointment with the CEO, after a meeting date had been cancelled once he was dismissed. Mr Kelly also said that he had called the Commission about a week or so after the date of dismissal.[7] He and Ms Nickell discussed the making of an application, and in the course of that discussion Mr Kelly learned of the statutory time limit, becoming aware of the time limit either the day before the application was lodged or the same day.[8]
There is no evidence before the Commission about Mr Kelly’s health, other than his statements that he was stressed and required medication. The time of its onset, its symptoms and their severity are unknown. There is no evidence from his medical practitioner that would corroborate what he puts forward or that the his illness may have prevented him from commencing an unfair dismissal action.
The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect.[9] The absence of medical evidence, or “generalised” medical evidence, will typically be insufficient to establish a contention that the delay is occasioned by medical incapacity.[10] In order to accept evidence of a medical condition explaining a delay in lodging an unfair dismissal application, the Commission would expect to have an insight into the extent to which the Applicant was incapacitated during the whole of the period following termination of employment.[11] Medical evidence must be adduced which shows that the stress or other condition adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay.[12] Medical evidence is relevant in the consideration of an applicant’s capacity to lodge an unfair dismissal application, as well as the assessment of other evidence which may otherwise undermine a contention that a person’s capacity provides a credible reason for the delay.[13]
It follows there is no automatic determination to be made that medical reasons amount to an acceptable explanation for the delay which makes it equitable to extend the time limit for the filing of an unfair dismissal application.
Similarly, there is no evidence suggesting that the CEO’s office, having cancelled the meeting with Mr Kelly after he was dismissed,[14] held out to Mr Kelly the meeting would be rescheduled as he desired.[15]
As referred to above, the delay to be taken into account is the delay in lodgement after the statutory time limit has concluded. I do not have a clear view of why the delay came about. It may have simply been ignorance of the time limit if Mr Kelly first learned about the time limit the same day he lodged the application. Alternatively, if he learned of the time limit the day before he lodged the application, then that was also the last day for an in-time lodgement and Mr Kelly then failed, without an adequate explanation, to lodge the application that day, being the last possible day for an in-time lodgement.
I do not consider either of the above reasons for delay to provide a satisfactory explanation for the delay.
As a result, I find that consideration of this criterion leans against a finding of exceptional circumstances and the granting of an extension of time for the filing of Mr Kelly’s unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
Mr Kelly was made aware of his dismissal when Monash Health wrote to him on 14 November 2024. As such, consideration of this criterion also leans against a finding of exceptional circumstances.
Action taken to dispute the dismissal
After his dismissal, Mr Kelly endeavoured to re-stablish a meeting with Monash Health’s Chief Executive Officer; however there is no document before me showing the intended purpose of the meeting and no meeting took place. There is no evidence to suggest that the contemplation of a meeting with the CEO was an effort to string Mr Kelly along and deny him the opportunity for an in-time unfair dismissal action. In context, and given that the last attempt to schedule a meeting took place on or around 21 November 2024, about 2 weeks before Mr Kelly lodged his application, I do not find that Mr Kelly actively sought to dispute the end of his employment other than through the commencement of this application.
Accordingly, consideration of this criterion is a neutral factor in my consideration of whether there are exceptional circumstances for a grant of an extension of time for the making of Mr Kelly’s unfair dismissal application.
Prejudice to the employer
Monash Health does not put forward any particular prejudice to it if an extension of time were to be granted, save for the fact that it objects to the characterisation of Mr Kelly’s end of employment being a dismissal. Consideration of this criterion is also a neutral factor in my overall decision.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an Applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[16] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the Applicant; or alternatively, whether it appears an Applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[17]
At this stage, the material before the Commission about all these matters associated with the application is at a basic level, so no findings can be made about the parties’ respective prospects.
In finality, I consider these matters to be a neutral factor in my overall consideration of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal Applicants, whose applications are either currently before the Commission, or have been decided in the past.[18] It would be unfair to other persons who have not been allowed an extension of time to grant an extension in the absence of exceptional circumstances.[19]
There is no evidence before the Commission of any person in such a similar position.
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Kelly, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of his application for an unfair dismissal remedy.
As a result of this finding, Mr Kelly’s unfair dismissal application must be dismissed and an order to that effect is issued at the same time as this decision.[20]
COMMISSIONER
Appearances:
Mr R. Kelly, for the Applicant.
Mr B. Skeels, for the Respondent.
Hearing details:
15 January.
2025.
[1] Respondent’s Form F3, Attachment E, F and G.
[2] Ibid, Attachment G.
[3] Ibid, Attachment H.
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975,[13].
[5] Ibid.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Transcript, PN 96
[8] Transcript, PN 82 – 94.
[9] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67].
[10] Robertson v Bega Dairy & Drinks[2022] FWC 2636, [23].
[11] Ibid.
[12] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9]
[13] Robertson v Bega Dairy & Drinks[2022] FWC 2636, [23].
[14] Transcript, PN 52 – 60.
[15] Trasncript, PN 61 – 77.
[16] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[17] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[18] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[19] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[20] PR783919.
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