Paul Tredinnick v Primo Foods Pty Ltd
[2023] FWC 1383
•13 JUNE 2023
| [2023] FWC 1383 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Paul Tredinnick
v
Primo Foods Pty Ltd
(C2023/2290)
| COMMISSIONER P RYAN | SYDNEY, 13 JUNE 2023 |
Application to deal with contraventions involving dismissal
Introduction
This decision concerns an application by Mr Paul Tredinnick (Tredinnick/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, Mr Tredinnick stated his employment with Primo Foods Pty Ltd (Respondent) commenced on 24 February 2019 and that his dismissal took effect from 26 March 2023. The Application was made on 21 April 2023.
In its Form F8A Response, the Respondent stated that the Applicant’s dismissal took effect from 27 March 2023. The Respondent objected to the Application on the ground that it was not made within 21 days after the dismissal took effect.
The Applicant subsequently accepted that his dismissal took effect from 27 March 2023.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 17 April 2023. The Application was therefore filed 4 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2).
The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The Applicant filed written submissions in chief and in reply, as well as the following documents:
· A Fair Work Ombudsman Enquiry (ref: 3006415) (Exhibit 1); and
· A Medical Test Report (Exhibit 2).
The Respondent filed written submissions and a witness statement of Ms Tanya Shanahan, the Respondent’s General Manager for Human Resources (Exhibit 3).
The matter was heard on 6 June 2023. The Applicant represented himself. The Respondent was represented by Ms B Sakrzewski-Hetherington, the Respondent’s Group Legal Counsel – Employee Relations.
For the reasons that follow, I decline an extension of time under s.366(2).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[4]
In the Application, the Applicant provided the following reason for the delay: “I had initially made an enquiry with the Fair Work Ombudsman (Enquiry No. 3006415) within the 21 day period, thinking this this was the process I was required to take. I have now been advised by the ombudsman that I would need to progress the matter with the Fair Work Commission.”
In his written submissions, the Applicant submitted the following were reasons for the delay:
(a) Engaging in settlement discussions with the Respondent;
(b) Lack of knowledge of unfair dismissal laws/Enquiry made with Fair Work Ombudsman;
(c) Medical Incapacity; and
(d) Impact of public holidays over Easter period.
Engaging in settlement discussions with the Respondent
The Applicant submitted that following the termination of his employment, he engaged a lawyer and entered into settlement discussions with the Respondent over the period from 31 March 2023 to 19 April 2023. The Applicant submitted that time spent attempting to resolve the matter contributed to the delay in filing the Application.
The Respondent submitted that the fact the parties were engaged in settlement discussions would not have prevented the Applicant from filing the Application.
The Respondent noted that part 3.1 and 3.3 of the Application were directly copied from correspondence sent on behalf of the Applicant[5] and completing the balance of the Application would not have been onerous or time consuming.
The Respondent referred to the decision in Smith v The Trustee for The Salvation Army (Victoria) Property Trust T/A Employment Plus,[6] where Commissioner Hunt observed that the completion of an unfair dismissal application form is not incredibly taxing and anticipated that it would typically take no more than one hour to complete. The Respondent submitted that those observations were equally applicable to a general protections application.
The Commission has previously found that engaging in settlement discussions is not a factor that prevents the filing of an application within a statutory time limit.[7]
While settlement discussions are to encouraged, there is no reason why the Applicant could not have filed the Applicant and continued to engage in settlement discussions with the Respondent. Accordingly, I do not accept that engaging in settlement discussions with the Respondent is an acceptable or reasonable explanation for the delay.
Lack of knowledge of unfair dismissal laws/Enquiry made with Fair Work Ombudsman
On 14 April 2023, the Applicant made an online enquiry with the Fair Work Ombudsman. The online enquiry included the following fields of information and the Applicant’s selection/response/input:
You need information about:
Ending employment (eg. Final pay, notice) 1. Unfair Dismissal
Your other workplace issues or questions:
I was not promoted or considered for promotion and then ultimately had my role terminated because of discrimination around sex, age and potentially physical discrimination.
Is there anything else you want to tell us about your enquiry?
I was not considered for the General Manager Marketing role despite successful business results (acknowledged through bonus payments and pay increases) and no concerns in performance at any review. The role was given to a woman with less experience. Had my employment abruptly terminated shortly after advising the General Manager that I had been diagnosed with suspected [redacted]. I was discriminated against by: a. not being promoted (or properly considered for promotion) because of my sex and/or age; and b. having my employment terminated because of my sex and/or age and/or physical disability.
On 20 April 2023, the Fair Work Ombudsman responded as follows:
Dear Paul, Thanks for your enquiry. You’ve mentioned that you feel you’ve been discriminated against in the workplace. We can provide you with adv ice & guidance on awards, enterprise agreements & the National Employment Standards (NES). The Fair Work Commission may be able to assist in relation to your discrimination claim. I’ve attached a link to further information under Related objects in your enquiry. You can also call them on 1300 799 675. If they’re unable to assist then you can seek further assistance from the Australian Human Rights Commission. I’ve also attached a link to their website under Related objects. If you have any follow up questions, please call us back on 13 13 94 between the hours of 8:00 am to 5:30 pm Monday through Friday or you can submit an enquiry to us online via My account. Regards Ev Fair Work Ombudsman.
The Applicant submitted that he was not aware of the 21 day period, or that he was required to file an application with the Commission rather than the Fair Work Ombudsman. The Applicant submitted that if he had been aware of the time limit, he would have contacted the Commission.
The substance of the Applicant’s submission is that he was not aware that an application should have been made to the Commission within the 21 day period.
I do not accept this constitutes an acceptable or reasonable explanation for the delay for the following reasons.
First, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[8]
Second, the circumstances of this matter can be distinguished from those in Gough v LifeAid Pty Ltd,[9] where the applicant made an application to the Fair Work Ombudsman within the applicable time limit. In this matter, the Applicant’s engagement with the Fair Work Ombudsman was in the context of seeking information concerning the ending of employment and unfair dismissal. A simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.
Furthermore, I note the Fair Work Ombudsman’s website clearly sets out that applications for unfair dismissal and unlawful termination (including general protections matters) must be lodged with the Commission within 21 days and provides direct links to the Commission’s website.
Medical Incapacity
The Applicant submitted that during the 21 day period he had underwent some medical tests and was advised by his doctor that he was suspected of having a serious medical condition. For the purposes of this decision, I do not consider it necessary to provide any further detail concerning the nature of the medical condition.
The Applicant submitted that on receiving that news he suffered from a ‘degree of cognitive impairment’ which contributed to the delay in filing the Application.
The Applicant tendered a medical testing report which records the Applicant underwent medical tests on 8 February 2023 and 29 March 2023.[10] However, the Applicant did not adduce any evidence of medical incapacity.
In Victor Blanco v White Bathroom[11] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that 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 without proper and specific medical evidence.
[51] In summary the following principles apply:
(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 had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).[Footnotes omitted]
I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit.
I accept that being advised by his doctor that he is suspected of having a serious medical condition would be distressing for the Applicant. However, the Applicant has not explained how any resultant medical incapacity prevented him from filing the Application within time, but did not prevent him from engaging in settlement discussions with the Respondent and making the online enquiry with the Fair Work Ombudsman.
In the absence of medical evidence supporting incapacity such to prevent the filing of the Application, I do not consider medical incapacity is an acceptable and reasonable explanation for the delay.
Impact of public holidays
The Applicant submitted that the impact of the public holidays falling over the Easter period (7-10 April) contributed to the delay.
The Easter period fell within the 21 day period (28 March – 17 April) and the final day of the 21 day period (Monday 17 April) was not a Saturday, Sunday or public holiday.
Saturdays, Sundays and public holidays falling within the 21 day period do not extend the period.[12] However, if the last day of the 21 day period is a Saturday, Sunday or public holiday, the 21 day period will be extended until the next day that is not a Saturday, Sunday or public holiday.[13]
The Applicant did not elaborate, beyond a level of generalisation, how the impact of public holidays failing within the 21 day period contributed to the delay.
Accordingly, I do not accept that this is an acceptable or reasonable explanation for the delay.
Reason for the delay - conclusion
For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
I am satisfied the Applicant took steps to dispute his dismissal when he sought to enter into settlement discussions with the Respondent. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
The Respondent submitted that it would suffer prejudice if an extension of time were granted in defending an application that it would not otherwise be required to defend.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the General Protections Application
The FW Act requires me to take into account the merits of the Application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[14] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
P Tredinnick, Applicant.
B Sakrzewski-Hetherington, for the Respondent.
Hearing details:
2023.
Sydney:
6 June.
<PR763025>
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Exhibit 3 at [21], Annexure TMS4.
[6] [202] FWC 3006 at [60]
[7] Iain Alexander Ferguson v B & E Poultry/Young 8 Pty Ltd T/A B & E Foods[2018] FWC 1403 at Maurer v Rema Tip Top Industrial Australia Pty Ltd[2015] FWC 6145 at [20]; Fairfull v Hamilton Child Care Centre Inc[2015] FWC 1035 at [19].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[9] [2010] FWA 2481
[10] Exhibit 2.
[11] [2021] FWC 4694 at [44]-[51].
[12] See s.36(2) of the Acts Interpretation Act 1901; s.40A of the FW Act.
[13] Ibid.
[14] See paragraph [11] above.
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