Murray Gracie v Technical and Further Education Commission
[2025] FWC 718
•13 MARCH 2025
| [2025] FWC 718 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Murray Gracie
v
Technical and Further Education Commission
(U2025/508)
| COMMISSIONER CRAWFORD | SYDNEY, 13 MARCH 2025 |
Unfair dismissal application filed out of time – no exceptional circumstances – extension of time not granted – application dismissed
Background
Murray Gracie commenced temporary full-time employment with the Technical and Further Education Commission (TAFE) on 24 April 2023 as a Teacher in Commercial Cookery. Mr Gracie’s temporary contract identified an end date of 19 January 2024. Mr Gracie’s temporary employment was later extended to an end date of 20 December 2024. On 3 December 2024, Rye Cunningham (Head Teacher – Blue Mountains & Wetherill Park) sent Mr Gracie an email which provided written notice that Mr Gracie’s employment would end on 20 December 2024 when his contract expired. Mr Cunningham referred to low enrolment numbers and key teaching programs concluding as the two main factors which led to that decision. Mr Gracie filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 14 January 2025. Given the dismissal date of 20 December 2024, the 21-day filing period ended on 10 January 2025. Mr Gracie’s application was filed four days after that deadline. As a result, Mr Gracie requires an extension of time to file the unfair dismissal application. This decision concerns whether an extension of time should be granted pursuant to s.394(3) of the FW Act.
I issued directions for the filing of material and listed a hearing in relation to the extension of time issue for 3 March 2025 via video. Mr Gracie represented himself at the hearing. TAFE was represented by Julian Oliveux (Director of Workplace Relations) and Ella Rooney (Industrial Relations Specialist).
Material filed
Mr Gracie
Mr Gracie sent an email to the Commission dated 21 January 2025. The email explained that Mr Gracie was not aware of the 21-day filing period and that he was awaiting a response from TAFE before he filed an application. Mr Gracie also provided a copy of a formal complaint he submitted to TAFE on 9 December 2024 regarding his treatment by Mr Cunningham. Mr Gracie provided a submission dated 18 February 2025 which contained evidence about why he missed the 21-day deadline and why his dismissal was unfair. Mr Gracie referred to suffering from a decline in his mental health following the dismissal and indicated that he had sought assistance from a counsellor. Mr Gracie provided further evidence about steps he took to dispute his dismissal directly with TAFE. Mr Gracie also referred to being given verbal indications his employment would continue into 2025 and suggested that conflict with Mr Cunningham may have been the real reason that his employment ended on 20 December 2024.
I marked the material filed by Mr Gracie as Exhibit A1. Mr Gracie was not required for cross-examination.
After the hearing had concluded and I had reserved my decision, Mr Gracie sent a medical certificate from Dr Arshad Merchant dated 3 March 2025 to my chambers. The certificate confirms Mr Gracie has been suffering from anxiety and depression since 2010 and is prescribed medication. Dr Merchant confirms he has been treating Mr Gracie since November 2019. The certificate states Mr Gracie’s latest DASS 21 scores indicate he suffers from extremely severe depression, severe anxiety, and severe stress. The certificate does not identify when the latest DASS 21 assessment was undertaken. Mr Gracie also subsequently filed a statement of attendance from TELUS Health which confirms he attended counselling appointments on 14 December 2024, 9 January 2025, and 27 January 2025. Mr Gracie also subsequently provided a copy of his final payslip to demonstrate he received a vacation payment of $7,663.68 gross when his employment was terminated to cover the 2024/25 Christmas and New Year holiday period.
I sought the views of TAFE regarding whether I should consider the additional evidence filed by Mr Gracie. TAFE did not object to the additional evidence being considered but requested an opportunity to file a further written submission in response to the additional evidence. I agreed to that course of action. I have taken the additional evidence filed by Mr Gracie into account.
Mr Gracie provided oral submissions at the end of the hearing.
TAFE
TAFE relied on a witness statement from Kristie Taig (Industrial Relations Specialist) dated 17 February 2025. Ms Taig’s statement had the following documents attached:
· A copy of Mr Gracie’s temporary employment contract. The contract identifies that Mr Gracie’s employment commenced on 24 April 2023 and was initially due to end on 19 January 2024.
· A letter that confirms the end date of Mr Gracie’s employment was extended to 20 December 2024.
· A copy of Mr Cunningham’s email to Mr Gracie dated 3 December 2024 which confirmed Mr Gracie’s employment would end on 20 December 2024.
· An email sent by the NSW Teachers Federation to TAFE on 11 December 2024 which raised concerns about why Mr Gracie’s employment was ending on 20 December 2024. Ms Taig responded to the email on 13 December 2024 and indicated she would manage TAFE’s response.
· An email sent by Mr Gracie to Mark Hawkins (Executive Director Education and Skills) on 29 December 2024. Mr Gracie raises concerns about his treatment by Mr Cunningham and the decision to end his employment. Mr Hawkins responded to Mr Gracie’s email when he returned from leave on 13 January 2025. Mr Hawkins indicated he would follow up on the issues raised by Mr Gracie. Mr Hawkins sent Mr Gracie a further email on 14 January 2025 which provided an update about the investigation into Mr Gracie’s complaints against Mr Cunningham. Mr Hawkins also indicated TAFE was communicating with the Teachers Federation about the end of his employment.
I marked Ms Taig’s statement, and the attached documents, Exhibit R1. Ms Taig was not required for cross-examination.
TAFE relied on an outline of submissions dated 17 February 2025. Mr Oliveux provided oral submissions at the end of the hearing. TAFE also relied on a further written submission in response to the additional evidence filed by Mr Gracie dated 11 March 2025.
Statutory provisions
Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) whether Mr Gracie first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Gracie 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 Mr Gracie and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
Consideration – extension of time
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 10 January 2025. The delay is the period commencing immediately after that time until 14 January 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]
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.[3]
Mr Gracie 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 Mr Gracie has not provided any reason for any part of the delay.[4]
Mr Gracie identified the following reasons for the delay with the filing of his unfair dismissal application:
1.Mr Gracie suffered from mental health issues following his dismissal.
2.Mr Gracie was attempting to resolve his concerns directly with TAFE and TAFE was not being responsive.
3.Mr Gracie was not aware of the 21-day filing period.
4.Mr Gracie was confused about whether his employment had ended because he received a payment which covered the 2024/25 Christmas and New Year vacation period.
In relation to Mr Gracie’s mental health issues, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[5] The stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]
I am not satisfied that Mr Gracie has provided sufficient medical evidence to establish that he was not able to file an unfair dismissal application due to his mental health issues prior to 14 January 2025. I accept Mr Gracie has been suffering from anxiety and depression since 2010 based on Dr Merchant’s medical certificate. I also accept that Mr Gracie has previously recorded DASS 21 assessment scores reflecting extremely severe depression, severe stress, and severe anxiety. However, Dr Merchant’s certificate does not establish that these conditions had an impact on Mr Gracie’s ability to file an unfair dismissal application prior to 14 January 2025. It appears Mr Gracie was able to work without issue for TAFE from March 2023 to December 2024 despite these conditions. Dr Merchant’s certificate also does not indicate that Mr Gracie sought assistance from him after his dismissal on 20 December 2024. Mr Gracie did not refer to any appointments with Dr Merchant during the hearing. Dr Merchant’s certificate also does not indicate when the latest DASS 21 assessment occurred. There is no evidence which suggests the assessment was undertaken during the period after Mr Gracie’s dismissal.
Mr Gracie has also provided evidence that he attended two counselling sessions with TELUS Health between the date of his dismissal and when his unfair dismissal application was filed on 14 January 2025. I am not satisfied that Mr Gracie’s attendance at two counselling sessions demonstrates he was not able to file an unfair dismissal application until 14 January 2025 due to his mental health.
I also note Mr Gracie was able to raise concerns about his dismissal in an email sent to Mr Hawkins on 29 December 2024. This suggests Mr Gracie would have been well enough to complete an unfair dismissal application around this time but decided to try raising his issues directly with TAFE as an alternative.
In relation to Mr Gracie’s attempts to resolve his concerns directly with TAFE, I consider this conduct is primarily relevant to the issue of what actions Mr Gracie took to dispute his dismissal. In any event, the actions do not provide an adequate reason for the delay because Mr Gracie could have filed an unfair dismissal application in addition to trying to resolve his concerns directly with TAFE.
In relation to Mr Gracie not being aware of the 21-day filing period, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[7] Mr Gracie’s alleged lack of awareness about his legal rights is not a satisfactory explanation for the delay.
In relation to Mr Gracie’s fourth explanation, I do not consider TAFE making a payment to Mr Gracie covering the 2024/25 Christmas and New Year holiday period is sufficient to establish confusion about the date of dismissal. It is clear from Mr Cunningham’s email that Mr Gracie’s employment would end on the expiry date of his temporary contract which was 20 December 2024. TAFE making a further payment did not alter the clearly identified dismissal date of 20 December 2024.
I find Mr Gracie does not have an adequate explanation regarding the delay in the filing of his unfair dismissal application. I find this factor weighs strongly against a finding of exceptional circumstances and the granting of an extension of time.
Did Mr Gracie first become aware of the dismissal after it had taken effect?
Mr Gracie became aware on 3 December 2024 that his employment would end on 20 December 2024. I consider this is a neutral factor.
What action was taken by Mr Gracie to dispute the dismissal?
It is clear Mr Gracie made several attempts to contest the decision to end his employment on 20 December 2024. Mr Gracie sought assistance from the Teachers Federation and raised his concerns directly with Mr Hawkins on 29 December 2024. I find this factor weighs in favour of a finding of exceptional circumstances.
What is the prejudice to the employer (including prejudice caused by the delay)?
TAFE referred to suffering prejudice from the cost and time of having to defend the application. That sort of prejudice would likely arise in any unfair dismissal case. I am not satisfied TAFE will suffer any substantial prejudice if an extension of time is granted. Mr Gracie’s application was filed only four days late. I find prejudice to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[8]
If an extension of time is granted, Mr Gracie will have to deal with an additional jurisdictional issue regarding whether he was dismissed at the initiative of TAFE. TAFE appears to have a reasonable argument that Mr Gracie’s employment ended in accordance with the terms of his contract which can legally mean the employment was ended by the effluxion of time rather than at the initiative of TAFE. However, the fact that the employment ended on the expiry date of the temporary contract does not mean that there was no dismissal at the initiative of the employer in all cases.[9] Mr Gracie appears to have a reasonable argument that he was advised his employment would continue into 2025 and that the circumstances changed following his issues with Mr Cunningham.
There are vastly different views between Mr Gracie and TAFE regarding why the decision was made to not offer Mr Gracie employment beyond 20 December 2024. It is not possible to determine which party is correct at this early stage.
I find the merits of the application is a neutral factor.
Fairness as between Mr Gracie and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]
TAFE argued it would be unfair for Mr Gracie to be granted an extension of time in circumstances where other TAFE employees who missed the 21-day filing period have not been granted an extension. TAFE did not refer to any specific cases.
I find fairness to be a neutral factor. All the relevant facts and circumstances of other cases would need to be known to make an informed assessment of any unfairness.
Conclusion – exceptional circumstances
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are 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.[12] 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.[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[14]
Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Mr Gracie has cleared the “high hurdle” of establishing exceptional circumstances. I have found that Mr Gracie does not have a satisfactory reason for the delay. I do not consider Mr Gracie’s actions taken to dispute the dismissal to be sufficient to establish that there are exceptional circumstances. I have found the remaining factors to be neutral.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Mr Gracie representing himself.
Mr Oliveux and Ms Rooney for TAFE.
Hearing:
2025.
Sydney (via video using Microsoft Teams).
3 March.
Final written submissions: 11 March 2025.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis 39].
[4] Ibid [40].
[5] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)-[2018] FWCFB 1643, [38], [67].
[6] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].
[8] Ibid [36].
[9] Saeid Khayam v Navitas English Pty Ltd t/a Nivita English [2017] FWCFB 5162.
[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] See ibid.
[14] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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