Mr Troy O'Loughlin v CNW Electrical & Data Supplies

[2020] FWC 4183

[2020] FWC 4183

FAIR WORK COMMISSION

DECISION

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

Mr Troy O'Loughlin
v
CNW Electrical & Data Supplies
(U2020/7614)

DEPUTY PRESIDENT CROSS SYDNEY, 7 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 3 June 2020, Mr Troy O’Loughlin (the “Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant claimed he was employed, by CNW Pty Ltd (the “Respondent”). The Applicant commenced his employment with the Respondent on 27 May 2019. The Applicant was dismissed from his employment on 27 April 2020, and that dismissal took effect on that date.

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the “Commission”) may allow. Taking as the point of calculation the date when the resignation took effect, an application for a remedy should have been lodged by 18 May 2020. The application was therefore lodged outside of the time prescribed and was lodged 16 days after the last day on which such an application could have been made.

[3] On 13 July, Directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (the “Application”) would be determined.

[4] In the hearing of the Application, the Applicant relied upon his Form F2 Unfair Dismissal Application (“Form F2”), a medical report from a Dr Kaur dated 25 June 2020, and a reply submission to the submissions relied upon by the Respondent (the “Applicant’s Reply Submission”). The Respondent relied upon their Form F3 Employer Response to Unfair Dismissal Application (“Form F3”) and an Outline of Submission (the “Respondent’s Submission”).

[5] The matter was heard on 4 August 2020.

Submissions

[6] The Applicant was employed by the Respondent from 27 May 2019, to 27 April 2020. The Applicant’s employment was terminated for alleged lack of sales performance. The Applicant relied upon the contents of his answer to question 1.5 of his Form F2 regarding why he was late in filing his application. Therein he stated the following:

“As you can appreciate this is a very stressful time and I was under a lot of stress with kids being home schooled and also trying to complete the necessary home work both my children were given.

I am also going through a separation with the mother of my children and that has caused a degree of mental health issues that I am currently seeking help for.

There were days that I just couldn’t function let alone get out of bed.

I firmly believe I have a very strong case and would appreciate if you would allow for my application to proceed so that I can at least have some self esteem restored.”

[7] The Report from Dr Kaur was brief, and the totality of the body of that report was as follows:

“Troy is applying for unfair dismissal.

After his dismissal from work he has been experiencing significant adjustment disorder with features of depression. As a result he was unable to start the application process within the time frame.

Please take this into consideration.

In the meantime, he will be having a Mental health Care plan with myself for treatment of adjustment disorder and depression.”

[8] In the Applicant’s Reply Submission, the Applicant provided further explanation as follows:

“Again I state I was unaware of the time from of 21 days to lodge my application. otherwise I would have lodged so in a timely manner on the odd days I was able to perform.”

[9] The Applicant also submitted that the Respondent had made an error in filing their Form F3, and that as a matter of fairness, that error should effectively cancel out his error of being out of time. Upon questioning, the Applicant could not identify to which factor of s.394(3) that submission was relevant. Apparently, the Respondent had on 1 July 2020, filed an F3 in this matter that in fact related to another matter and former employee. Upon being advised of the error on 9 July 2020, the Respondent filed the correct Form F3 on 10 July 2020.

[10] The Respondent submitted that it is not uncommon for a person whose employment has been terminated to experience stress, and that of itself does not constitute an exceptional circumstance. The Respondent noted that there is extensive and long standing authority for the proposition that stress and mental illness alone are insufficient of themselves to establish exceptional circumstances under the Act.

[11] Further, the fact that the Applicant’s children were being home schooled does not amount to an exceptional circumstance. The fact that the Applicant had the time and the capacity to assist with his children’s homework indicates that he would not have been incapable within the time frame of 21 days of completing and lodging his Application.

[12] Further, while the Applicant’s separation may well have resulted in his experiencing mental health issues, as he claims, the Respondent noted that no details of such issues were provided, nor any details about how such issues impacted upon his ability throughout the 21 day period to complete and lodge his Application. The medical certificate of Dr Kaur was submitted to be inadequate to demonstrate that any such mental health issues amounted to exceptional circumstances preventing the Applicant from fulfilling his obligations under the Act.

Consideration

[13] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[14] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a “further period” should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

“(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.”

[15] It is clear from the structure of s.394(3) of the Act that 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 show exceptional circumstances.

[16] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[17] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[18] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[19] Necessarily, the period of the delay with which the explanation is concerned is the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[20] The Applicant essentially relies upon stress and depression to explain his delay. While he has presented some medical evidence, it falls well short of establishing a medical condition that has precluded the Applicant, in either the initial 21 day period or for the period of the delay, from pursuing his rights. Stress and mental illness alone are insufficient of themselves to establish exceptional circumstances under the Act 1.

[21] I note particularly the following two submissions of the Applicant;

(a) In the Form F2 Unfair Dismissal Application, the Applicant stated “There were days that I just couldn’t function let alone get out of bed”; and

(b) In the Applicant’s Reply Submission, the Applicant stated “…otherwise I would have lodged so in a timely manner on the odd days I was able to perform.”

[22] Quite clearly, the Applicant was not so incapacitated either during the 21 day period after termination, or the 16 day period thereafter, that he could not attend to his application on some days, and it is trite to observe that ignorance of the time limit is no exceptional circumstance.

[23] There is, however, a further factual basis for finding that there is not an acceptable reason for a distinct part of the delay. The Form F2 , while filed on 3 June 2020, was signed and dated 28 May 2020. The Applicant gave evidence in the hearing that he prepared the Form F2 between 25 and 28 May 2020. The reason he did not file the Form F2 on 28 May 2020, was that he was “Working on the process of getting everything together”.

[24] From the period between 25 and 28 May 2020, having answered Question 1.5 of the Form F2, the Applicant was clearly on notice of the 21 day time period, and his explanation of the delay after that date is unacceptable. His Form F2 was a basic form of application with no significant detail or annexures. The delay from 28 May 2020, to 3 June 2020, was simply unacceptable.

[25] I find that there was no acceptable explanation for any part of the Applicant’s delay in filing the Form F2. Accordingly, this factor weighs in the Respondent’s favour.

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

[26] This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[27] The Applicant did not challenge the alleged dismissal in any way. The Respondent notes the Applicant did not dispute the dismissal but made no submission regarding this consideration being accorded any weight. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[28] The Respondent in its submission did not claim to have suffered any material or significant prejudice as a consequence of the delay. Accordingly, I consider that this is a neutral factor.

(e) Merits of application

[29] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[30] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

[31] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(f) Fairness between the person and other persons in a similar position

[32] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[33] In regard to the Applicant’s submission that, as the Respondent made an error in filing the Form F3, he too should be allowed his error as to out of time filing, and be allowed to pursue his claim, I note the Act specifically requires the establishment of exceptional circumstances. Absent a finding of exceptional circumstances, an extension of time must not be granted. I find that none of the factors outlined in s.394(3) of the Act allows consideration and/or acceptance of an error in filing by the Respondent as establishing exceptional circumstances.

[34] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was whether there existed an acceptable reason for delay. That factor weighed significantly in the Respondent’s favour.

[35] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Susan Rose v BMD Constructions Pty Ltd [2011]FWA 673; Matthew Simari v Australian Aged Care Group Pty Ltd[2020] FWC 403.