Ms Hannah Mullen v National Auto Service Pty Ltd

[2024] FWC 3175

[2024] FWC 3175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Hannah Mullen
v

National Auto Service Pty Ltd

(U2024/12199)

COMMISSIONER TRAN MELBOURNE, 18 NOVEMBER 2024

Application for an unfair dismissal remedy

Introduction

1. On Saturday 12 October 2024, Ms Hannah Mullen (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act in relation to the termination of her employment by National Auto Service Pty Ltd (the Employer/Respondent).

1. Ms Mullen was employed as an apprentice mechanic. She started her apprenticeship with National Auto on 15 November 2021.

1. National Auto dismissed Ms Mullen for conduct reasons on 20 September 2024. Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period under s 394. There is no dispute about the dismissal date of 20 September 2024. Therefore, the statutory period of 21 days ended at midnight on Friday 11 October 2024. The application was filed on Saturday 12 October 2024 at 09:18am¸ about 9 hours after the end of the statutory period.

1. Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am satisfied that there are exceptional circumstances to allow a further period to 12 October 2024 for the application to be made. My reasons follow.

Procedural Matters

1. In accordance with directions I had issued, Ms Mullen filed submissions and documentary evidence, and National Auto filed submissions.

1. I held a determinative conference on 14 November 2024. Ms Mullen gave evidence on her own behalf at the conference. I also permitted Ms Mullen’s father to make additional submissions on her behalf.

Relevant Law

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy 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).

1. Section 394(3) of the Act provides that:

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.

1. The legislation is clear that the power to extend time is discretionary, but may only be exercised if first satisfied that there are exceptional circumstances.

1. Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[1] establishes the following:

·   the Commission must consider all of the circumstances;

·   the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;

·   but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;

·   a single event can be exceptional;

·   a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon;

1. The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. The conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]

Factors to take into account

394(3)(a) – the reason for the delay

1. The Full Bench in Ozsoy v Monstamac Industries Pty Ltd said that an applicant needs to provide a credible reason for the period that the application was delayed, and that the delay is the period beyond the specified 21 days.[3]  In this matter, that period is about 9 hours.

1. Ms Mullen gave several reasons for her delay. First, she tried to obtain evidence in support of her application. Second, she was looking for a new job. Third, she went on pre-booked holiday from 27 September until 4 October where she did not have internet access. Fourth, that she miscalculated the date. Fifth and last, her depression, which included panic attacks, flared up because of the dismissal and considering whether to make an application.

1. The first 3 reasons relate to events during the statutory period and not to the delay itself. Some of the reasons are not acceptable reasons (being on holiday). Others do not demonstrate incapacity to file an application but may instead be evidence that she could take action (commendably seeking new employment and trying to obtain the evidence she needed to substantiate her case). The reasons are relevant to the context for the delay, but an applicant has the 21-day period within which to file.[4]

1. The fourth reason – miscalculating the period – is unfortunate and not uncommon. Similarly to cases about ignorance of the time limit, this cannot be considered an acceptable reason for delay on its own.

1. The final reason is more persuasive. Ms Mullen gave evidence that she was ready to file her application before the statutory period expired (although due to her miscalculation, she thought she had another day). But she experienced a panic attack when considering confronting her former employer and sent a message seeking support from her mother. She did not see her mother’s reply because after the panic attack concluded, she became exhausted and fell asleep. When she awoke, she saw the message, was reassured and filed her application (to her mind, still within the time period).

1. Ms Mullen gave evidence that she had pre-existing anxiety and depression which flared up in the immediate aftermath of her dismissal. She provided a letter dated 24 September 2024 from her treating doctor referring her to a psychologist for six counselling sessions as evidence of the flare up. The letter does not detail the effects of depression. Ms Mullen says that from this referral, she attended sessions weekly. She also provided a picture of the medication she takes for her depression. The medication label is dated 26 October 2024 and shows that it is the second of 2 repeats. But it is not clear evidence before me that she took this medication around the time that she lodged her application.

1. National Auto submits that, individually and together, none of the matters constitute exceptional circumstances. They say that her capacity to seek alternate employment during the time demonstrates that she was not incapable or incapacitated from filing the application within the 21-day period. I agree with the last submission, but am of the view that Ms Mullen provided credible and acceptable reason for the delay that does demonstrate an incapacity to file – she had a panic attack after which she fell asleep. When she awoke, she filed the application.

1. National Auto emphasised in oral submissions that Ms Mullen’s evidence was not supported by medical evidence. Medical evidence is not a requirement as such.[5] Deputy President Easton has summarised the principles that apply when an applicant relies on health reasons.[6]  These include that a depressive illness might point towards exceptional circumstances if the illness had a material impact on the applicant’s capacity to lodge the application within time.[7]

1. Ms Mullen provided sufficient evidence to satisfy me that she does experience a mental health condition that requires regular counselling. I believed her when she says she experienced a panic attack and described the effects upon her. The effects impacted her ability to file the application within time. When she recovered, she did not delay any further. Taken together with her miscalculation of the date, I am of the view that this factor weighs in favour of a finding of exceptional circumstances.

394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

1. Ms Mullen says that National Auto handed her a letter of termination on the date that it took effect. She was therefore aware of the dismissal. I consider this factor neither weighs in favour nor against a finding of were exceptional circumstances.

394(3)(c) – any action taken by the person to dispute the dismissal

1. Ms Mullen did not take any action to dispute the dismissal. Her reasons for not doing so include that she was afraid of the employer. National Auto says that contrary to this she returned to the physical workplace to retrieve her personal effects. I consider this factor neither weighs in favour nor against a finding of were exceptional circumstances.

394(3)(d) – prejudice to the employer (including prejudice caused by the delay)

1. The delay was less than a day; it was about 9 hours. The Respondent in its submissions accepted that the delay is minimal. I consider this factor neither weighs in favour nor against a finding of were exceptional circumstances.

394(3)(e) – the merits of the application

1. My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[8] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[9]

1. Ms Mullen does appear to have an arguable case. She asserts that she was provided with a show cause letter, but that it did not include complaints that were made against her. She also says that the employer unreasonably refused her request for a support person.

1. I have only the application form to assist me in assessing the merits of Ms Mullen’s substantive application. National Auto did not file a Form F3 response but their reasons for not filing a response were acceptable.

1. I consider this factor to weigh mildly in favour of a finding of exceptional circumstances.

394(3)(f) – fairness as between the person and other persons in a similar position

1. This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[10]  The Full Bench in Croker v Erndit Logistics Pty Ltd has indicated that this factor may involve a comparison of cases involving similar facts.[11]

1. Neither party made submissions relevant to this factor.

1. There are many cases in which an applicant relies on medical reasons in seeking an extension of time. Each turn on their own facts; in some cases, the Commission has found exceptional circumstances; in others, the Commission has not. I am unaware of any relevant matter with sufficiently similar factual circumstances. I consider this factor neither weighs in favour nor against a finding of were exceptional circumstances.

Conclusion

1. Having regard to all the matters in s 394(3) of the FW Act, I am satisfied that there are exceptional circumstances in this matter. This is because Ms Mullen provided a credible reason for the delay – being a combination of her miscalculation of the limitation date, her mental health and her panic attack which rendered her incapable of making her application within time. Other matters were neutral in my consideration, except for the consideration about the merits of the matter, which weighed mildly in favour of a finding of circumstances.

1. As such, I exercise my discretion to allow a further period for the application to be made.

1. I am satisfied that it is appropriate to extend the period for the application to be made to 12 October 2024 and order accordingly.

1. I will list the matter for a case management conference to programme it for determination. A Notice of Listing will issue separately.

Order

1. I order that the time for Ms Hannah Mullen to make her application under s 394 of the Act to be extended to the actual date of lodgement, which was 12 October 2024.

COMMISSIONER

Appearances:

Ms H. Mullen the Applicant, for herself.
Mr R. Martin for the Respondent.

Hearing details:

14 November 2024
Melbourne

[1]  [2011] FWAFB 975 at [13]

[2] Stogiannidis,Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39]

[3] [2014] FWCFB 2149 at [31]

[4] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]

[5] see Mamo v ICLED Australia Pty Limited T/A Signs National Group[2021] FWC 3903 at [24]

[6] Mamo at [25]

[7] see Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226 at [10]; and Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435 at [15]-[16]

[8] see Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council[2022] FWCFB 109 at [26]

[9] [2018] FWCFB 4109 at [72]

[10] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

[11] [2023] FWCFB 224 at [49]

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