Rachael Jane Dowdeswell v Removery (Aust) Pty Ltd
[2023] FWC 1936
•4 AUGUST 2023
| [2023] FWC 1936 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Rachael Jane Dowdeswell
v
Removery (Aust) Pty Ltd
(C2023/3568)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 4 AUGUST 2023 |
Application to deal with contraventions involving dismissal – request for an extension of time - no exceptional circumstances – general protections application dismissed.
Introduction
On 19 June 2023, Ms Rachael Jane Dowdeswell (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Removery (Aust) Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application made under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute between the parties that the employment relationship between the Applicant and the Respondent came to an end by way of dismissal on 27 April 2023. It is also not in dispute that the Applicant was aware of the cessation of her employment with the Respondent on 27 April 2023. I equally make this finding.[2]
Given that the Applicant filed her Application on 19 June 2023, the Application has been filed 32 days outside of (or beyond) the 21 day time limit under s.366(1)(a) of the Act. The Applicant should have filed her Application on or before 18 May 2023 for it to have been filed within the requisite 21 day time period.
At the hearing on 2 August 2023, the Applicant appeared for herself, and Ms Teejay Bui-Mata’afa, National People and Culture Manager, appeared for the Respondent.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to grant an extension of time. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[3]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[4]
(emphasis added)
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[5]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[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.”[6]
At this point, a note of caution is appropriate. Whilst phrases such as ‘have regard to’ or ‘take into account’ require a decision-maker to give a relevant matter(s) weight as a fundamental element in the decision-making process, it is wholly up to the decision-maker as to what weight (if any) is given to a matter in terms of its influence on an ultimate result. As Kitto J stated in the case of Rathborne v Abel[7]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[8]
(my emphasis)
Reason for delay[9]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[10], as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[11] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay (but this will be most unusual).[12]
In Bianca Mamo, Deputy President Easton outlined issues associated with illness (including mental illness) and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] 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 were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] 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.
[21] 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.
[22] 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.”
[23] 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.”
[24] It is not a requirement per se 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.
[25] 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 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 Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”[13]
(footnotes omitted)
I concur with and adopt the foregoing principles.[14]
The Applicant’s reasons for delay in filing her application late may be shortly stated, or summarised, as follows:
a) She was admitted to hospital between 30 April 2023 and 5 May 2023;
b) She was not fully aware of the complexities and intricacies of the law around unfair dismissal and general protections involving dismissal applications;
c) She was suffering from mental health issues, affecting her ability to focus and concentrate.[15] Further, she had various medical appointments to attend that impacted upon her available time;
d) She spoke to the Commission’s Telephone Helpline on 15 June 2023, and was told that her case is a general protections involving dismissal case, as opposed to an unfair dismissal case (because she had been employed with the Respondent for less than 6 months at the time of her dismissal). After obtaining this advice, she filed her (general protections) Application four days later on 19 June 2023.[16]
Whether a person decides to avail themselves of legal advice or representation (free or otherwise) is a matter for them. It is not a matter that ordinarily justifies a delay in the filing of an application. The Commission’s website (running 24/7) has a wealth of information going to the preparation and filing of applications (i.e. removing the prima face ‘need’ for legal advice or representation). There is nothing in the Act that provides for an exception to the 21-day time period on the basis that an employee is unable (for whatever reason) to obtain legal advice or representation. Whilst a failure or inability to obtain legal advice or representation is not irrelevant, as all of the circumstances of a case ought to be considered, it is not a matter that can be said to be unusual, special, uncommon or out of the ordinary when it comes to assessing an applicant’s reason/s for delay.
The Commission Telephone Helpline does not provide legal advice. This is clearly stated on the Commission’s website, which reads (to the effect): “As an Independent Tribunal, we [the Commission] cannot give you legal advice”. It is also made clear when one contacts by telephone, the Commission’s Telephone Helpline, where, before a call is answered by a staff member, an automated message states (words to the effect): “Staff cannot give you advice or an opinion. They can only provide general information as found on the FWC’s website. If you are after legal advice, ask about your eligibility for the free legal advice service”. There is no evidence before me as to the full content of the discussion that occurred between the Applicant and the Commission’s Telephone Helpline staff member, other than the Applicant’s version of that call. I do not consider that I am in a position to make a finding of fact as to what was said to the Applicant during her telephone call on 15 June 2023, and in any event, what was said cannot be said to constitute advice (i.e. because Commission staff cannot give advice or opinions). That said, I accept that it was brought to the Applicant’s attention on 15 June 2023 that her unfair dismissal application could not proceed. What is not clear is the reason as to why the Applicant thereafter took a further four days to file her general protection involving dismissal application (that is the subject of these proceedings).
Exceptional circumstances may be found to exist where an applicant has a medical or other incapacity (established by probative medical evidence) that prevents the applicant from filing an application within the 21 day time period and for the relevant period of the delay.[17] No such evidence has been provided by the Applicant in this case. In other words, the medical evidence that is relied upon by the Applicant does not explain or otherwise justify the whole of the lengthy (32 day) delay in the filing of her Application.
In view of the findings I have made in the foregoing paragraphs, I do not accept that the Applicant has provided “probative evidence” confirming that she was ‘prevented’ (or unable) to file her Application within 21 days of her dismissal on 27 April 2023. The reasons for delay relied upon by the Applicant simply do not, or do not sufficiently, explain her delay. I thus conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute her dismissal[18]
The Applicant was aware of her dismissal by the Respondent on the day that it took effect (i.e. 27 April 2023). The evidence discloses that the first time that the Respondent became aware that the Applicant disputed her dismissal was when it first received her Application on 26 June 2023. I therefore consider it appropriate to treat this criterion as a neutral consideration.
Prejudice[19]
In relation to prejudice to the Respondent, I am not aware of any. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to the existence of exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made).[20] I therefore treat this criterion as a neutral consideration.
Merits[21]
The principles stated Kyvelos v Champion Socks Pty Ltd[22] (Kyvelos), albeit in relation to a predecessor of the Act, still remains good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[23]
In Kornicki v Telstra-Network Technology Group,[24] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
The Applicant says that she was dismissed for reasons of temporary absence and/or discrimination (related to reasons associated with her temporary absence/s, and/or her ADHD diagnosis). The Respondent rejects these allegations or assertions, denies any contravention of Part 3-1 of the Act, and says that the Applicant was dismissed for poor performance and inappropriate or unacceptable conduct issues whilst on a period of probation (during which each party had the ability to end the trial (probationary) period of employment for any reason (other than a prohibited reason) upon the provision of one week’s notice). In short, the Respondent says that the Applicant’s dismissal arose because it considered that the Applicant was not completing the duties and responsibilities of her role, leading the Respondent to form the view that the Applicant was not suitable for the role on an on-going or permanent basis.
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Whilst one might say that the Applicant’s case has merit (or is arguable), one cannot otherwise say that the Respondent’s defences (even taking into account issues of reverse onus) are unarguable, or are absent merit. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable.
But the fact that a case is arguable, does not mean that it has reasonable prospects of success, or is unequivocally meritorious. It simply means that adverse action (i.e. dismissal) has occurred, and an Applicant asserts that he or she was subjected to such adverse action for a prohibited reason. The rubber hits the road only where the adverse action is taken “because of” a prohibited reason, and in most cases the resolution of that issue will be subject to determinations as to witness credibility tested against documentary or other objective evidence and factual findings. A Form F8 application is not a pleading, and in many cases Form F8 applications make bare allegations, or allegations that are not properly particularised. A Form F8A is equally not a pleaded defence, and in many cases a respondent is unable to respond to unparticularised allegations (or bare assertions) that are made in a Form F8 application. An out of time application essentially seeks an indulgence from the Commission to extend the filing time of an application that has been late. It would be significantly troubling if the expectation at an out of time hearing is that a Respondent be required to comprehensively traverse or answer a case against it where the purpose of the out of time hearing is to ascertain whether an indulgence to an Applicant ought to be granted. In my view, any assertion that a respondent need engage in a comprehensive manner with the merits of an applicant’s case at, or for the purposes of, an out of time hearing, ought be treated with significant caution.
In summary, to reach a conclusion beyond the threshold of ‘arguable’ in this case would require close scrutiny in a contested hearing, which is completely unwarranted in an out of time (or other interlocutory) hearing (and has not occurred in this case before me).[25] I therefore treat merits of the Application as no more than a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[26]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[27] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[28]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence exceptional circumstances in this case. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 19 June 2023 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Rachael Jane Dowdeswell (Applicant), appeared for herself.
Ms Teejay Bui-Mata’afa, National People and Culture Manager, appeared for the Respondent.
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009.
[2] See Termination of Employment letter dated 27 April 2023. Notwithstanding that the Applicant did not receive her final pay until 4 May 2023 (including a payment of one week in lieu of notice), there can be no suggestion that the employment relationship did not end on 27 April 2023. To find otherwise would be to wrongly conclude that because the employment contract ‘may’ have continued until 4 May 2023 (when final payment was made), the employment relationship equally extended to this date.
[3] [2011] FWAFB 975.
[4] Ibid.
[5] [2018] FWCFB 901.
[6] Ibid, at [17], [19], [38]-[39].
[7] (1964) 38 ALJR 293.
[8] Ibid, at 301.
[9] Section 366(2)(a).
[10] [2021] FWC 3903.
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[12] Ibid, at [40].
[13] [2021] FWC 3903, at ]19]-[25].
[14] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[15] Connected to the passing of her Grandfather in March 2023, and her good friend in April 2023.
[16] I note that Commission records indicate that the Applicant lodged an unfair dismissal claim on 10 May 2023, but it was never formally filed as it was unpaid and incomplete. It was also never served upon or otherwise brought to the attention of the Respondent. That unfair dismissal claim was later withdrawn on 15 June 2023. The Applicant has not explained the four day delay (between 15 and 19 June 2023) in filing her general protections involving dismissal application.
[17] Bianca Mamo v ICLED Australia Pty Limited T/AS Signs National Group[2021] FWC 3903, at ]19]-[25]. See also, Traie Hansen v Supported Options In Lifestyle And Access Services Ltd T/A Solas [2016] FWC 5907, at [45].
[18] Section 366(2)(b)
[19] Section 366(2)(c).
[20] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[21] Section 366(2)(d).
[22] (1995) 67 IR 298.
[23] Ibid at 299 to 300.
[24] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[25] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[26] Section 366(2)(e).
[27] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[28] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
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