Peter Elliott v LEAP Legal Software Pty Limited T/A LEAP Legal Software

[2018] FWC 4343

[2018] FWC 4343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Peter Elliott
v
LEAP Legal Software Pty Limited T/A LEAP Legal Software
(C2017/7240)

COMMISSIONER SAUNDERS NEWCASTLE, 24 JULY 2018

Application to deal with contraventions involving dismissal – application for extension of time – application dismissed.

[1] On 30 December 2017, Mr Peter Elliott lodged an application pursuant to s 365 of the Fair Work Act 2009 (Act) alleging that the termination of his employment with LEAP Legal Software Pty Limited (Respondent) on 8 November 2017 was in contravention of the general protections provisions of the Act (Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] On 6 June 2018, a Full Bench of the Commission quashed my earlier decision concerning Mr Elliott’s application for an extension of time and remitted the matter to me for a rehearing. 3

Rehearing

[4] In addition to the evidence adduced and submissions made at the original hearing on 29 January 2018, I gave each party an opportunity in the rehearing to rely on any further witness statements, medical reports, documents and/or submissions. Neither party took up the opportunity to rely on any further evidence. Mr Elliott filed a report by his treating psychiatrist, Dr Michael Schirripa, dated 25 June 2018, but elected not to rely on that report or call Dr Schirripa to give evidence in support of his application for an extension of time. Mr Elliott was offered an adjournment of the extension of time rehearing “until a suitable date on which Dr Schirripa is available to give evidence by telephone. By that time the Respondent will have had an opportunity to review documents produced by Dr Schirripa in response to the order for production”. 4 The order for production of documents sought by the Respondent had not been made at that time, but would have been made had Mr Elliott elected to rely on Dr Schirripa’s report dated 25 June 2018. Mr Elliott declined the offer of an adjournment and elected to have his extension of time application reheard on the basis that he would not rely on Dr Schirripa’s report dated 25 June 2018.5 Accordingly, I have not had regard to Dr Schirripa’s report dated 25 June 2018 in determining Mr Elliott’s application for an extension of time.

[5] Both parties made submissions in the rehearing. In particular, Mr Elliott relies on written submissions he made to the Full Bench in connection with his appeal. 6 The Respondent relies on its written submissions dated 13 July 2018. In addition, Mr Elliott made short oral submissions on 20 July 2018. In rehearing Mr Elliott’s application for an extension of time, I have considered and had regard to the evidence adduced and submissions made at the original hearing on 29 January 2018, together with the further written and oral submissions made in connection with the rehearing. I have also had regard to the decision of the Full Bench of the Commission in rehearing the application.7

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person 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 person and other persons in a like position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group Pty Ltd. 8 In that matter the Full Bench held as follows in relation to “exceptional circumstances”:

“[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

Reasons for delay – s 366(2)(a)

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 9 A dismissal can be communicated orally.10

[10] 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. 11 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,12the Full Bench explained (at [31]) the correct approach by reference to the following example:

“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.”

[11] A credible 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 366(2)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible 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: 13

“[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.”

[12] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 14

Relevant chronology of events and reasons for delay

[13] There is no dispute between the parties, and I am satisfied on the evidence, that Mr Elliott’s employment with the Respondent came to an end on 8 November 2017.

[14] The 21 day time period for Mr Elliott to make his Application expired on 29 November 2017. 15 Given that Mr Elliott filed his Application on 30 December 2017, the Application was filed 31 days late.16

[15] In accordance with the principles summarised in paragraph [9] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 30 November 2017 to 30 December 2017. However, the circumstances from the time of the dismissal on 8 November 2017 must be considered when assessing whether there is credible explanation for the delay, or any part of the delay, beyond the 21 day period.

[16] The relevant timeline of events from Mr Elliott’s dismissal on 8 November 2017 may be summarised as follows:

(a) On 8 November 2017, Mr Elliott was informed orally of the Respondent’s decision to terminate his employment;

(b) At 8:25am on 9 November 2017, Ms Brid Heffernan, National Sales Manager of the Respondent, sent an email to Mr Elliott confirming the Respondent’s decision to terminate his employment effective 8 November 2017. Mr Elliott was paid one week’s salary in lieu of notice;

(c) On 10 November 2017, Mr Elliott was admitted to a private hospital, the Adelaide Clinic, for psychiatric care at the direction of his consulting psychiatrist, Dr Michael Schirripa;

(d) On 1 December 2017, Dr Schirripa completed a medical certificate in relation to Mr Elliott in which Dr Schirripa, inter alia, set out his diagnosis for Mr Elliott, listed Mr Elliott’s functional symptoms and expressed the opinions that: 17

(i) Mr Elliott was unfit for work from 27 October 2017 to 31 December 2017 inclusive;

(ii) Mr Elliott was not currently able to do his usual work/study; and

(iii) Mr Elliott could not do any other work for 8 hours or more per week.

(e) On 8 December 2017, Mr Elliott was discharged from the Adelaide Clinic, having been at that hospital since 10 November 2017;

(f) On 12 December 2017, Mr Elliott attended the Fair Work Ombudsman in Adelaide, South Australia where he was advised that they could not help him and he would need to go to the Commission in relation to his potential claim against the Respondent. He then attended the Commission’s offices in Adelaide where he was provided with some forms and a list of contacts for community legal centres;

On 13 December 2017, Mr Elliott attempted to contact the Roma Mitchell Community Legal Centre in Norwood, South Australia, however the phone rang out and he was not able to speak with anyone to obtain legal advice;

(g) On 15 December 2017, Mr Elliott contacted the Roma Mitchell Community Legal Centre and obtained some legal advice over the phone;

(h) Mr Elliott then spent “many days” updating Windows 10 on his laptop computer. After he had done so Mr Elliott was able to proceed with compiling the information required to complete his Application;

(i) On 30 December 2017, Mr Elliott filed his Application in the Commission; and

(j) Mr Elliott then took several days to rest after submitting his Application. 18

[17] Mr Elliott believes he completed his Application with “requisite due diligence in the soonest possible time frame”. 19 In support of that contention, Mr Elliott says that “there is no facility to start an online application, save it and then return to it later to complete, and … one of the terms and conditions of lodging the online application is that ‘you have provided the information requested correctly and fully and that an assessment of your application may be made on the basis of the information provided’”.20

[18] I accept that Mr Elliott has provided credible explanation for not filing his Application in the period from 10 November 2017 to 8 December 2017, during which period he was admitted to the Adelaide Clinic for psychiatric care. However, I am not satisfied that he has provided a credible explanation for his delay in making his Application in respect of the whole of the period from 9 December 2017 to 30 December 2017, for the following reasons:

(a) The medical certificate completed by Dr Schrippia certified Mr Elliott as unfit for work from 27 October 2017 to 31 December 2017 inclusive. It did not certify Mr Elliott as unfit or incapable of completing a General Protections or other application. The medical certificate was completed on 1 December 2017 while Mr Elliott was still admitted to the Adelaide Clinic and applied to a retrospective period of 35 days (i.e. since Mr Elliott had become Dr Schirripa’s patient on 27 October 2017) and a prospective period of 29 days (i.e. until 30 December 2017). Dr Schirripa was not called to give oral evidence in support of the application for an extension of time. Accordingly, it was not possible to ask Dr Schirripa:

(i) the basis on which he expressed the opinion in the medical certificate that Mr Elliott would be unfit for work for a period of 29 days after he prepared the medical certificate;

(ii) the basis on which he expressed the opinion in the medical certificate that Mr Elliott was unfit for work in the period from 27 October 2017 to 6 November 2017 when Mr Elliott in fact attended work in that period;

(iii) the basis on which he expressed the opinion in the medical certificate that Mr Elliott could not do “any other work for 8 hours or more per week”; or

(iv) whether, in his opinion, Mr Elliott had any capacity to prepare and lodge his Application at any time prior to 30 December 2017.

The medical certificate dated 1 December 2017 was the only medical evidence relied upon by Mr Elliott. No other medical evidence was adduced to support a finding that Mr Elliott did not have capacity or was otherwise unable for medical reasons to file his Application at any time in the period from 9 December 2017 to 30 December 2017;

(b) In the period from 12 December 2017 until 30 December 2017 Mr Elliott was able to, and did, take a number of different steps towards making a claim against the Respondent. In particular, he visited the Fair Work Ombudsman’s offices, visited the Commission’s offices in Adelaide, contacted a legal centre and ultimately obtained some legal advice from them, updated Windows 10 on his laptop computer, and worked on his Application;

(c) For the reasons summarised in subparagraphs [18(a) and (b)] above, I am not satisfied that Mr Elliott was incapacitated or otherwise unable to file his Application for the whole of the period from 9 December 2017 to 30 December 2017;

(d) The time spent by Mr Elliott in searching for and obtaining information and free legal advice in relation to his dismissal was not unusual and did not, in my view, provide a credible explanation for that part of the delay in filing his Application; and

(e) The difficulties and delays Mr Elliott encountered updating Windows 10 on his laptop computer and not being able to start an online application, save it and then return to it later were not unusual and did not, in my view, provide a credible explanation for that part of the delay in filing his Application. Mr Elliott was able to either lodge his Application online using the Commission’s Online Lodgment Service (OLS) or by post, fax or email or in person at the Commission’s office in Adelaide. Mr Elliott gave evidence that he was provided with a hard copy of forms by the Commission on 12 December 2017. In the circumstances, Mr Elliott had a number of options for completing his Application, including completing the form by hand and lodging it in person at the Commission’s office in Adelaide which he attended on 12 December 2017.

[19] Mr Elliott has provided a credible explanation for not filing his Application in the period from 10 November 2017 to 8 December 2017, but he has not provided a credible explanation for not filing his Application in the period from 9 to 30 December 2017. On balance, I find that this factor (s 366(2)(a)) weighs against a finding of exceptional circumstances and granting Mr Elliott an extension of time.

Any action taken by the person to dispute the dismissal – s 366(2)(b)

[20] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 21

[21] When Mr Elliott was advised of his dismissal during a telephone conversation with Ms Heffernan on 8 December 2017, he tried to convince Ms Heffernan to reconsider the decision to terminate his employment with the Respondent and give him another chance. He did the same during a telephone conversation with Mr Brendan Smart, CEO of the Respondent, a few hours later on 8 December 2017. Following the call, Mr Elliott sent a text message to Mr Smart in relation to his dismissal, asking for another opportunity. Mr Elliot also took a number of steps towards making a claim against the Respondent, including visiting the Fair Work Ombudsman’s offices, attending the Commission’s offices in Adelaide and contacting a legal centre to obtain legal advice.

[22] For the reasons set out in the previous paragraph, I find that Mr Elliott did take action to dispute his dismissal and this factor (s 366(2)(b)) weighs in favour of a finding of exceptional circumstances and granting Mr Elliott an extension of time.

Prejudice to the employer (including prejudice caused by the delay) – s 366(2)(c)

[23] Prejudice to the employer will weigh against granting an extension of time. 22 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.23 The employer must produce evidence to demonstrate prejudice. A long delay gives rise “to a general presumption of prejudice”.24

[24] The period of the delay in this matter was 31 days. No evidence was adduced by the Respondent in this case to demonstrate prejudice.

[25] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. The absence of prejudice is a factor which weighs in favour of a finding of exceptional circumstances. 25

Merits of the application – s 366(2)(d)

[26] Mr Elliott commenced employment with the Respondent on 28 August 2017 in the position of Product Consultant. Mr Elliott alleges that his employment was terminated on 8 November 2017 because of his mental disability in contravention of s.351 of the Act. Mr Elliott further alleges that his employment was terminated because he was temporarily absent from work because of illness or injury in contravention of s.352 of the Act.

[27] The Respondent contends that the sole reason for the decision to terminate Mr Elliott’s employment was because of his poor performance in the role of Product Consultant. The Respondent denies that Mr Elliott’s employment was terminated because of his mental disability or because he was temporarily absent from work because of illness or injury. The Respondent denies being aware that Mr Elliott suffered from any mental disability prior to making the decision to terminate his employment. The Respondent further denies that Mr Elliot was temporarily absent from work because of illness or injury at the time his employment was terminated because Mr Elliott did not provide a medical certificate, statutory declaration or other substantiating information about the illness or injury until 2 January 2018.

[28] The resolution of the key contested factual question concerning the reason(s) for the termination of Mr Elliott’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Fairness as between the person and other persons in a like position – s 366(2)(e)

[29] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said (at [41]): 26

“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.”

[30] I am not satisfied that the issue of fairness as between Mr Elliott and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[31] Having considered all the circumstances and taken into account the matters referred to in s 366(2)(a) to (e) of the Act, I am not satisfied that there are exceptional circumstances such as to allow a further period for the Application to be made.

[32] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the Application being made out of time is upheld and the substantive Application is dismissed.

[33] At the end of the rehearing Mr Elliott made an application that I republish my earlier decision published on 6 February 2018 to remove certain “sensitive health information” and that I not include that information in my decision to be published on the rehearing. In the alternative, Mr Elliott requested that I not include in my decision on the rehearing any “sensitive health information” other than that included in my 6 February 2018 decision. Mr Elliott contends that the “sensitive health information” is not necessary to be disclosed for the purpose of determining his application for an extension of time and may have an impact on his ability to obtain alternative employment. Even if I had the power to “republish” my earlier decision to delete part of its contents, I would not exercise such a power in this case because (a) my earlier decision has been published and publicly available for about five and a half months, (b) Mr Elliott tendered the “sensitive health information” in the original hearing on 29 January 2018 and did not seek a confidentiality order, or raise any other issue, in relation to it, and (c) I am required by s 366(2)(a) of the Act to take into account “the reason for the delay” in considering whether there are exceptional circumstances and Mr Elliott’s health information is directly relevant to that issue. I have acceded to Mr Elliott’s alternative request not to include in this decision on the rehearing any “sensitive health information” other than that included in my 6 February 2018 decision.

COMMISSIONER

Appearances:

Mr P Elliott, Applicant.

Mr L Hespe, Solicitor, on behalf of the Respondent.

Hearing details:

2018.

Newcastle (by telephone):

July 20.

Printed by authority of the Commonwealth Government Printer

<PR609245>

 1   Section 366(1)(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 366(2) of the Act

 3   [2018] FWCFB 3288

 4   Email from the Associate to Commissioner Saunders to Mr Elliott sent at 1:22pm on 4 July 2018.

 5   Email from Mr Elliott to the Associate to Commissioner Saunders sent at 3:11pm on 4 July 2018. Mr Elliott also confirmed his election in that regard orally on 6 July 2018 and 20 July 2018.

 6   Written submissions filed by Mr Elliott on 29 March 2018 in the proceedings before the Full Bench, other than paragraphs 1, 2, 3, 4, 7 & 8

 7   Ibid

 8   [2011] FWAFB 975

 9   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 10   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

 11   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]

 12   [2016] FWCFB 349

 13   [2018] FWCFB 3288 at [35]-[45]

 14   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 15   That is, 21 days from 8 November 2017 (not including 8 November 2017) is 29 November 2017.

 16   30 December 2017 is 31 days after 29 November 2017.

 17   Exhibit A3

 18   Exhibit A1 at [19], [29]-[32]; Exhibit A2 at 1d

 19   Exhibit A2 at 1d at [9]

 20   Ibid

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 22   Ibid.

 23   Ibid.

 24   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 25   Long v Keolis Downer[2018] FWCFB 4109 at [66]

 26   [2016] FWCFB 6963