Ms Daniela Prince-Agbodjan v Victorian Aboriginal Child & Community Agency Co-Op Ltd
[2025] FWC 173
•22 JANUARY 2025
| [2025] FWC 173 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Daniela Prince-Agbodjan
v
Victorian Aboriginal Child & Community Agency Co-Op Ltd
(U2024/13355)
| COMMISSIONER CONNOLLY | MELBOURNE, 22 JANUARY 2025 |
Application for an unfair dismissal remedy - request for an extension of time - extension of time refused - application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
Ms Prince-Agbodjan lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Victorian Aboriginal Child & Community Agency Co-Op Ltd (VACCA) which her form F2 unfair dismissal application advised took effect on 14 October 2024.
The application was lodged on 7 November 2024 and is therefore 3 days out of time.
On 20 November 2024, I issued directions and advised that the extension of time issue would be considered at a video Hearing on 2 December 2024. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.
On 25 November 2024, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 14 October 2024 and raised a jurisdictional objection on the basis that the application was lodged out of time.
On 2 December 2024, I issued an ex-tempore decision refusing Ms Prince-Agbodjan’s request for an extension of time and dismissed her substantive application. This decision sets out the reasons for that finding.
Hearing
A hearing was conducted by way of video conference on 2 December 2024. A video file record of the video conference was kept.
A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Ms Prince-Agbodjan gave evidence at the hearing, her position is summarised as follows:
· The principal reason for her delay in filing is that she is suffering from anxiety and depression as well as suffering from a debilitating, persistent and reoccurring chest infection that left her unable to get up and function to the extent necessary to deal with things, including making her application to the Commission on time.
· The combined impact of her dismissal and health conditions have compounded her functional capacity;
· She has not previously had occasion to deal with the FWC and was unfamiliar with its requirements;
· She filed her application just 3 days out of time, as soon as she was able.
The Respondent relied on its F3 response material and further contended:
· The Applicant was 3 days late in making her application to the Commission;
· The Applicant was represented by the ASU throughout the disciplinary investigation and termination process and should have been aware of the 21 day filing requirement.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[13] In summary, the expression “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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]
“[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.”
It is not contested that Ms Prince-Agbodjan’s employment ended on 14 October 2024, by way to termination. Nor is it contested that her application for unfair dismissal has been filed 3 days late. To be considered by the Commission her application must be granted an extension of time.
The reasons Ms Prince-Agbodjan provides for her late application are that she was unable to meet the filing requirements because she was significantly ill. She was suffering a persistent, reoccurring and debilitating chest infection and was suffering from anxiety and depression, impacting her mental health. Her oral evidence to the Commission, which I accept, is that she was “under the weather” and “unable to get up…and take everything in”.
Ms Prince-Agbodjan provided a statutory declaration supporting her incapacity for the 10-day period, from 21 to 31 October 2024, which I accept.
In further support of her request, she has provided a doctor’s statement stating she has been receiving medical support for her anxiety since early August 2024, was referred to a psychologist on 24 September 2024 and treated for a chest infection on the same day. She was further treated for her chest infection on 9 and 23 November 2024.
I accept this evidence, and I am therefore satisfied Ms Prince-Agbodjan has presented credible evidence she is a person suffering from illness and mental health challenges. However, it does not necessarily follow that I accept Ms Prince-Agbodjan has provided reasons for the delay that warrant the granting of an extension of time.
I accepted that Ms Prince-Agbodjan’s evidence provide an explanation for the 10 days between 21-31 October 2024. Her termination was affected on 14 October 2024, and the deadline for filing her application with the Commission was 4 November 2024, leaving a further 11 days to be accounted for.
The reasons Ms Prince-Agbodjan provides to explain this 11-day period are set out above – in short, her chest illness and mental health condition. I am not satisfised these circumstances confronting the Applicant meet with test of exceptional circumstances.
There is nothing necessarily “exceptional, out of the ordinary course, or unusual” about being ill or suffering stress and anxiety.
In the present circumstances, Ms Prince-Agbodjan has been dealing with an investigation into her conduct in the workplace since January 2024. She has engaged with and participated in this process, attended work, meetings and providing responses (including with the assistance of union representatives) since this time. Her own evidence in proceedings is that she had been suffering her illness for some time prior to the termination, that it could “come and go”. This evidence supports a conclusion that Ms Prince-Agbodjan’s condition did not necessarily impact her capacity to perform functional tasks, including filing her unfair dismissal application on time.
The Applicant’s medical evidence is that she commenced treatment from 14 August 2024. And that she was treated for a chest infection and referred to a psychologist on 24 September 2024, prior to her termination. She was next treated for a chest infection on 9 November 2024 after the 21-day period and her application had been filed with the Commission.
Ms Prince-Agbodjan was also able to engage with the Respondent by text message on 24 October 2024, making enquiries about her final pay, during the 21-day period.
Ms Prince-Agbodjan’s housemate, Darlington O Chime, also provided a witness statement to the Commission attesting Ms Prince-Agbodjan was ill and not able to function for almost two months from 21 October 2024. Darlington O Chime did not present to give evidence to the Commission in support of this statement. This evidence is not entirely consistent with evidence of the Applicant I have set out above.
Critically, Ms Prince-Agbodjan’s evidence indicates a level of capacity to engage with functional tasks, including texting the Respondent during the 21-day period. She has not presented any compelling medical evidence of exceptional circumstances arising from her mental illness or independent evidence of its impact on her capacity.
As Deputy President Easton identified in Mamo v ICLED Australia Pty Ltd,[10] it is not necessarily a requirement to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an Applicant’s capacity to complete and file their application within the statutory time limit.[11]
In Mamo at [25] the Deputy President helpfully summaries the following principles to be applied in considering mental illness in the context of exceptional circumstances as follows:[12]
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness has a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness has an impact on her mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. The factors confronted by Ms Prince-Agbodjan are not “unique” or “unprecedented”, and I am not satisfied that they satisfy the criteria of being “out of the ordinary course”, “unusual” or “uncommon”.
Furthermore, when considered in light of the principles above, the medial evidence Ms Prince-Agbodjan has presented does not lead me to be satisfied that she did not have the mental or physical capacity to commence and complete filing her application within the required timeframe. I have also considered that Ms Prince-Agbodjan’s ability to engage with her employer during the application period supports this conclusion.
I have also had regard to the length of the delay – 3 days. It is relatively short. On its own however, this does not take the matter further, there must be an acceptable reason for the delay.[13]
In the present case, I am not satisfied Ms Prince-Agbodjan has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Ms Prince-Agbodjan was aware of the dismissal on the date it occurred. The evidence in this case is she was engaged with her employer about the future of her employment for some time prior to her dismissal and did not become aware of her termination after it had taken effect.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14]
It is not in contest that Ms Prince-Agbodjan made efforts to dispute her dismissal prior to it coming into effect, in addition to making this application.
This factor is a consideration in favour of the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[15] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[16]
A long delay gives rise “to a general presumption of prejudice”.[17]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[18]
I am satisfied that there would be no greater prejudice to VACCA caused by the application being dealt with now than there would have been had it been made within the 21-day time period. Accordingly, prejudice is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[19] considered this criterion and said:
“[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.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[20] reflecting these reasons was issued on 2 December 2024.
COMMISSIONER
Appearances:
Ms D. Prince-Agbodjan as the Applicant.
Ms B. Williams on behalf of the Respondent.
Hearing details:
2024.
Melbourne (via videoconference).
2 December.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) of the Act.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[4] [2011] FWAFB 975.
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].
[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
[7] 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].
[8] [2016] FWCFB 349.
[9] [2018] FWCFB 3288 at [35]-[45].
[10] [2021] FWC 3903.
[11] Ibid at [24].
[12] Ibid.
[13] See Gostencnik DP in Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479.
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[15] Ibid.
[16] Ibid.
[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
[18] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].
[19] [2016] FWCFB 6963.
[20] PR781918.
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