Mr Xavier Menta v Tree Amigos Victoria Pty Ltd
[2023] FWC 2943
•10 NOVEMBER 2023
| [2023] FWC 2943 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Xavier Menta
v
Tree Amigos Victoria Pty Ltd
(C2023/5147)
| COMMISSIONER PERICA | MELBOURNE, 10 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal
On 24 August 2023, Mr. Xavier Menta (the Applicant) made an application to the Fair Work Commission under s 365 of the Fair Work Act2009 (Cth) (the Act) alleging he was dismissed from his employment with Tree Amigos Victoria Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The information provided in the application and in the employer response form lodged by the Respondent indicates the application was made out of time.
The Commission’s powers to deal with a dismissal dispute under s 368 of the Act are subject to the determination of any jurisdictional issues. One of the jurisdictional issues is whether the application was made in time or whether an extension of time should be granted under s 366.
A mention hearing was conducted on 2 October 2023, after which Directions were issued afterwards to provide both parties with an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
I also sought the views of the parties on whether the extension of time application could be heard on the papers and there was no objection from either party. The decision is based on the filed materials in this matter, including the material filed pursuant the directions I made for the extension of time application.
When must an application for the Commission to deal with a dispute be made?
Section 366(1) of the Act provides:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
The application was made on 24 August 2023.
When did the dismissal take effect?
It is not contested the dismissal took effect on 26 June 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect”.[1]
The dismissal took effect on 26 June 2023. The final day of the 21-day period was therefore 17 July 2023 and ended at midnight on that day. The application was made on 24 August 2023. The application was made 38 days late. The application cannot proceed unless the Commission is satisfied that there are exceptional circumstances as elaborated in s 366(2).
Was the application made within such further period as the Commission allows?
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
The Full Bench in Nulty v Blue Star Group Pty Ltd [3] (Nulty) held that exceptional circumstances has its ordinary meaning and requires consideration of all the circumstances:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.
Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[4]
What follows is my consideration of the factors in s 366 individually and then collectively applying the meaning of exceptional circumstances described in Nulty.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 July 2023. The delay is the period commencing immediately after that time until 24 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
Applicant’s submissions on the reason for delay
In his filed material, the Applicant gave the following reasons for the delay:
“The primary reason contributing to the delay in my application are intrinsically linked to the state of my mental and physical health... During this time, I focused my attention on obtaining a workcover policy (sic.), organising my physio treatment, adding mental health treatment and prioritising my injury.
Following my termination, I realised I did not have a workcover policy (sic.) submitted. After speaking to my doctor and members in my family I was informed of the correct work cover procedures...
DXC promptly accepted my claim. However, my expectation of receiving payments was not met. This marked the commenced of a protracted struggle to secure the financial support I required during the period I was incapacitated and unable to seek alternative employment. The fight for compensation was not my sole battle. I also had to advocate for mental health assistance. Lacking income, I found myself unable to afford my regular psychologise. My pursuit of mental health support was endorsed by Workcover and was ultimately approved on August 2nd with my first session scheduled for August 9th.
The time between my termination and my initial mental health sessions was exceptionally challenging. My stress levels reached alarming heights, affecting my physical health and overall well being. My primary focus should have been on recovering from my physical injury and commencing a rehabilitation process.... It was only with the guidance of my psychologist that I could begin to address my mental health concerns, enabling me to begin to address my mental health concerns enabling me to think clearly and make informed decisions concerning my case.
On August 23rd mentally fortified I reached out to Fair Work to enquire about my rights to pursue Tree Amigos...”
The Applicant filed a letter dated 20 September 2023 from Lee Kennedy, Principal Clinical Psychologist. The letter explains the Applicant had sought treatment from Mr. Kennedy by a referral from the Applicant’s treating general practitioner under a mental health plan. The Applicant’s initial session was 9 August 2023, and he has had “six appointments since”. The clinical diagnosis within the letter is as follows:
“Xavier presented to his initial session endorsing symptoms of acute stress disorder with anxiety including ruminative thoughts, difficulty concentrating, sleep disturbances.”
It went on:
“Xavier’s priority from the time his wages stopped on the 26th June 2023 was to process the Workcover claim so that he could receive financial security and an income. He did not have the emotional or mental capacity to submitted paperwork to Fair Work within the timeframe specified due to his diagnosis of acute stress disorder.”
Respondent’s submissions on reason for delay
The Respondent made no submissions on the reason for the 38-day delay in filing the application.
The fact an applicant suffers stress because of a termination of employment is unsurprising and unexceptional. However, a clinical diagnosis of acute stress disorder and a medical report which ascribed the Applicant’s delay to that condition can be described as “out of the ordinary, unusual or special”.
Further, there is some relationship between the delay in the Applicant receiving workers compensation and the treatment and diagnosis of his condition. The Applicant states, because of the delay in the compensation payments, he was unable to afford sessions with his regular psychologist.
The reason for the delay being, the Applicant suffered from an acute stress disorder, together with an inability to seek treatment because of a delay in his workers compensation are factors in favour of a finding of exceptional circumstances under s 366.
Action taken by the Applicant to dispute the dismissal
The Applicant did not address this factor in his filed material. However, Mr. Treweek filed a Statement for the Respondent which included the following paragraph:
“After his termination, Mr. Menta returned to collect some paperwork. In conversation [Mr. Treweek] mentioned potential unfair dismissal proceedings against Tree Amigos, during which [Mr. Treweek] assured him of Tree Amigos compliance with the law. Mr. Menta did not express an immediate intent to pursue further legal action at that time which suggests that his intent was focussed on getting back on a workers compensation claim not being wrongfully dismissed.”
The Respondent’s material is filed to deny the Applicant took any action to dispute this dismissal. There is no evidence the Applicant did take action to dispute the dismissal. This factor counts against the Applicant.
It should be noted, however, that the exchange Mr. Treweek describes in his Statement suggests that he himself was conscious of and anticipating the Applicant commencing proceedings against the Respondent.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent did not raise any prejudice it had suffered by reason of the 38-day delay. This factor is therefore neutral to a finding of exceptional circumstances under s 366.
Merits of the application
The Respondent contests most the facts in this proceeding and insists the Applicant’s termination was “conducted in strict accordance with the law”. Mr. Treweek “believes the general protections claim to be vexatious”.
The Respondent’s material establishes a clear dispute on the facts in this case. The Commission cannot make any findings on those contested matters without hearing evidence. In those circumstances I find, on the material before me, the merits of the Applicant are a neutral consideration for the purpose of whether exceptional circumstances exist.
Fairness as between the person and other persons in a like position
None of the filed materials addressed this issue. It follows it is a neutral factor in a determination of whether “exceptional circumstances” exist for the purposes of s 366.
Conclusion
I find the Applicant’s 38-day delay in filing his application was due to his suffering from an acute stress disorder together with an inability to access his treating psychologist due to a delay in receiving workers compensation payments. This provides “exceptional circumstances”.
The only factor against a finding of "exceptional circumstances” is that the Applicant took no action to dispute the dismissal under s 366(2)(b). This factor is diminished as a reason against the granting extension of time because, on the material before me, the Respondent clearly anticipated the Applicant commencing legal proceedings.
The factors in s 366(2)(c) to (e) are neutral to a finding of “exceptional circumstances”.
I am satisfied, after a consideration of all the factors in s366(2), there are exceptional circumstances and I allow the Applicant a further period of time to make his application extending to the date the application was filed on 24 August 2023.
COMMISSIONER
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3][2011] FWAFB 975
[4] Ibid at [13]
[5] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
Printed by authority of the Commonwealth Government Printer
<PR768151>
0
0
0