Renee Mitchell v Mungabereena Aboriginal Corporation
[2023] FWC 2033
•15 AUGUST 2023
| [2023] FWC 2033 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Renee Mitchell
v
Mungabereena Aboriginal Corporation
(C2023/3379)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 AUGUST 2023 |
Application to deal with contraventions involving dismissal – request for an extension of time - no exceptional circumstances – general protections application dismissed
Introduction
On 12 June 2023, Ms Renee Mitchell (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 Mungabereena Aboriginal Corporation (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 2 May 2023. It is also not in dispute that the Applicant was aware of the cessation of her employment with the Respondent on 2 May 2023. I equally make this finding.[2]
Given that the Applicant filed her Application on 12 June 2023, the Application has been filed 20 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 23 May 2023 for it to have been filed within the requisite 21 day time period.
The matter was allocated to my Chambers on 30 June 2023, and Directions were issued to the parties that day programming the matter for hearing. Those Directions (and the hearing date) were subsequently varied at the request of the Applicant.
At the hearing on 27 July 2023, Ms Renea Kumar of Counsel, instructed by Ms Isabella Orlic, Solicitor, BlackBay Lawyers, appeared with permission on behalf of the Applicant, and Ms Katherine Dennis, Principal Lawyer, Sladen Legal, appeared with permission on behalf of the Respondent.
I note that at 11:13am on 26 July 2023 the Applicant filed a further witness statement that she sought to rely upon at the hearing the next day. The Respondent objected to this witness statement. At 1:30pm My Associate sent the following email to the parties in respect of the Applicant’s further witness statement:
“Dear parties
C2023/3379 - Renee Mitchell v Mungabareena Aboriginal Corporation
1. I write on behalf of the Deputy President.
2. At 11:13am this morning, the Applicant emailed a supplementary witness statement to Chambers. She did not seek prior leave to do so, and has not explained the basis upon which such leave ought be granted. The supplementary witness statement has not been filed in accordance with directions. It is a statement of some 27 paragraphs, and 11 pages of annexures. It is a statement of evidentiary substance, raising issues beyond the scope of evidence filed by the Applicant to date, and seeking to plug gaps or holes. It is not a statement that simply builds upon what has already been filed, and will not be accepted as such.
3. The Respondent has objected to the Applicant’s reliance upon the supplementary statement for various reasons, as set out in the letter from Ms Dennis of today’s date (emailed to Chambers at 12:42pm). The objections made are well founded.
4. In the circumstances, the Deputy President does not grant leave for the Applicant to rely upon the supplementary witness statement.
5. At the commencement of the hearing tomorrow, the Applicant can apply for leave to rely upon the supplementary witness statement. However, it is envisaged that if such leave is granted, it would likely come with:
(a) an adjournment to allow for the Respondent time to deal with or make inquiries about (e.g. via Notice to Produce) any issues raised in the supplementary witness statement; and
(b) consideration as to an order for costs (being costs of the adjournment, and costs thrown-away). Whilst the Commission is a limited costs jurisdiction, it is not a no costs jurisdiction.
6. Any request for leave should be supported by an affidavit in support of same, filed prior to 4:00pm AEST today (26 July 2023).
It will ultimately be a matter for the Applicant to determine how she wishes to proceed at the commencement of tomorrow’s hearing.
Yours faithfully”
At 4:40pm on 26 July 2023 the Applicant advised that she no longer sought to rely upon her further witness statement.
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 GroupPty Ltd[3] (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…”
[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)
Ignorance of, or unfamiliarity with, the Commission or its unfair dismissal or general protections jurisdiction, like ignorance of the 21 day statutory time limit, is not an exceptional circumstance.[5]
The test of “exceptional circumstances” is a “high hurdle” for an applicant to meet, and involves the exercise of a broad discretion by the Commission.[6]
The matters under s.366(2)(a)-(e) of the Act 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[7]:
“[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.”[8]
At this point, a note of caution is appropriate. In Elias v Commissioner of Taxation[9], Hely J points out that the comments of Wilcox J in Nestle Australia Ltd v Federal Commissioner of Taxation[10], are being made in circumstances where a decision-maker dismisses a relevant consideration as irrelevant. They are not being made absent a recognition “that the weight to be given to the consideration, either in an absolute or relative sense, is a matter for the decision-maker”.[11]
Whilst phrases such as ‘have regard to’ or ‘take into account’ require a decision-maker to properly take a matter into account, it is wholly up to the decision-maker as to what weight (if any) is given to a matter in terms of its influence upon an ultimate result. As Kitto J stated in the case of Rathborne v Abel[12] (Rathborne):
“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] VicRp 99 (16 May 1961); [1961] VR 632, per Adam J at 634.”[13]
(emphasis added)
The requirement to ‘have regard to’, or ‘to take into account’ a particular matter, as distinct from a necessity to give a matter weight, is perhaps best encapsulated by Lowe and O’Bryan, JJ, in De Iacovo v Lacanale (No 3); Psaila (No 3); De Maroc (No 3)[14] (De Iacovo), where they state:
“We agree with the approach which is made to this problem by the Full Court of New South Wales in Davey v Murfin (1956) 73 WN (NSW) 222, in discussing similar words in a New South Wales statute. There, Roper, CJ in Eq., said (at p. 223): ‘It has been submitted that in view of the requirements of that section it was necessary for the magistrate to consider each of the headings which are dealt with under [the relevant section of the legislation] and to make a finding on each of them except those which were not relevant having regard to the particular problems which were being dealt with here and then to have regard to that specific finding in some way or other, that is, to give the finding at least some weight. I do not think the magistrate is called upon to do that’. His Honour then went on to point out that the magistrate gave little or no weight to various factors, for example to what appears in our paragraphs (a), (d), and (f) of [the relevant section of the legislation]. He then added: ‘What regard he had to them was a matter for him and it is not shown that there was any error in law in the manner in which he approached the problem from that point of view’.”
The foregoing passages of Rathborne and De Iacovo are wholly consistent with the decision of the Full Bench (Watson VP, Sams DP, and Harrison C) in CEPU v Active Tree Services[15]:
“When a discretion is exercised different decision-makers may attach different weight to different factors and ultimately may reach different conclusions. It is not our task on appeal to determine if we would have made similar findings, attached similar weight to the factors or reached the same conclusion. In this regard the Commissioner properly had regard to relevant factors and the conclusion he reached was open to him.”[16]
Reason for delay[17]
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[18], 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.[19] 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,[20] but this would be most unusual.
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).”[21]
(footnotes omitted)
I concur with and adopt the foregoing principles.[22]
Evidence and submissions
I note that the Form F8 filed by the Applicant on 12 June 2023, is signed and dated by the Applicant as “26 May 2023”. This is the same date that the Applicant says she fully completed her Form F8 Application.[23]
The Applicant’s reasons for delay in the filing of her Application late are set out in her Witness Statement filed in these proceedings:
“45. On 2 May 2023, after a meeting with Mr Martin, I was notified of the termination of my employment and subsequently and on the same date, received a letter confirming that the Respondent had decided to terminate my employment with immediate effect on the grounds of serious misconduct.
46. On or about 5 May 2023, and after endeavouring to review and understand my rights arising from the termination by considering the information published on the Fair Work Commission (FWC) website, I lodged a written enquiry with the FWC but received what appeared to be an automated response advising that the FWC was experiencing a “high volume” of enquiries. I subsequently deleted this response.
47. On 11 May 2023, I called the Fair Work Ombudsman to seek advice in relation to the termination of my employment in the circumstances of the bullying, harassment and discrimination that I experienced, and in the context of my workers compensation claim.
48. When I explained my experiences whilst employed by the Respondent, a staff member of the Fair Work Ombudsman communicated words to the following effect: “It sounds like unfair dismissal”.
49. After that telephone conversation, I lodged an unfair dismissal application with the Fair Work Commission (FWC) on 11 May 2023. A copy of that application is attached and marked “J”.
50. On 12 May 2023, I submitted a Workplace Advice Request Form to the FWC, citing: “I need help before application is lodged”. I subsequently received an email from the FWC that a representative would be in touch within 5 days. A copy of that email is attached and marked “K”.
51. In or around a week after submitting the Workplace Advice Request Form, I received a telephone call from a FWC representative, who advised that they were at capacity and unable to provide advice.
52. In the period of 12 May 2023 and 26 May 2023, I attempted to engage several local solicitors to assist me with my FWC application. I recall making enquiries with Nevin Lenne Gross and Ms Lara Block from Harris Lieberman, both of which were at capacity and could not assist me with my application.
53. On 26 May 2023, I was able to speak with Mr David Koschitzke of Harris Lieberman. Mr Koschitzke informed me that as I was not employed for a period of 6 months by the Respondent, I could not bring an application for unfair dismissal. Mr Koschitzke then advised me that I would need to bring an application within the General Protections jurisdiction. To do so, I would have to discontinue my first application and make an out-of-time general protections application. This was the first time I became aware of the 6-month qualifying period or that the appropriate application for me was an Application in the general protections division.
54. I note that while Mr Koschitzke provided me with this advice, he did not assist or represent me in any capacity in the preparation of my second general protections application.
55. Following the above advice, I immediately drafted a general protections involving dismissal application.
56. However, as of 26 May 2023, I had not received any workers compensation payments for approximately 9 weeks. Due to this failure, I was suffering from immense financial stress and pressures and was struggling to provide for myself and my 4 dependents.
57. In addition to the financial stress and concerns I faced, I continued to experience symptoms of psychiatric injury and the diagnosed disorders developed following my treatment by the Respondent. These symptoms included distress, worry, agitation, lack of sleep, intrusive thoughts, fear for my safety, extreme anxiety and depression.
58. I also tested positive for Covid-19 in or around early May 2023 and was experiencing symptoms such as:
a. Heavy breathing;
b. Difficulty breathing;
c. High temperatures; and
d. Constant ear infections.
59. A copy of my medical certificate confirming my Covid-19 diagnosis is attached and marked “L”.
60. Due to the severity of my symptoms, a doctor was required to attend to me twice within my home.
61. As stated in Dr Sowden’s letters, I was not fit to return to work of any kind, or for rehabilitation during this period. I could barely get myself out of bed or perform simple tasks due to the injury that I was suffering.
62. It follows that I was not physically or mentally able to prepare a second application at this time. I was only able to lodge the second general protections application on 12 June 2023, when the symptoms of my psychiatric injury eased enough for me to perform simple tasks.
63. It was in the circumstances of my significant psychiatric injury, financial stress, and lack of legal representation that the second general protections application was lodged 20 days out of time.”[24]
The Applicant’s medical certificate in respect of COVID-19,[25] identifies that the Applicant consulted her doctor on 1 May 2023, that she had COVID-19 at that time (complicated by a facial rash), and that she is “unfit for her court hearing on 04/05/23”.
At the Hearing before me on 27 July 2023, the Applicant also relied upon a Memorandum from Dr Susette Sowden, the Applicant’s treating Clinical and Forensic Psychologist, sent to the Applicant’s General Practitioner, dated 25 July 2023, which reads:
“I am communicating regarding today’s session with Miss Mitchell today. Miss Mitchell reported she knew she needed to prepare a general protection application for the Fair Work Commission within a certain time frame. She was not able to do this however due to the severity of her workplace psychological injury. It is understood the time frame she had was between 26 May 2023 and 12 June 2023. Miss Mitchell first attended this Practice on 8 May 2023, with her then attending on 9 May 2023 and 17 May 2023. She then attended the next scheduled session which was on 22 June 2023 and subsequent sessions.
Upon Miss Mitchell’s initial presentation and the next presentation on 9 May 2023, it was determined she was suffering a severe Adjustment Disorder with Anxiety and Depressed Mood, and with trauma symptoms. I expressed concern about her slipping into a Major Depressive Disorder. She was also observed to be psychologically very ill on 17 May 2023 with her symptoms continuing to be observed to be very severe on the 22nd June 2023. In the light of the severity of her workplace psychological injury, it was considered that she was also suffering a severe functional impairment, with her not being considered psychologically well enough to be able to access or complete the required application forms for a general protection application order for the Fair Work Commission. She said she attempted to submit a claim for unfair dismissal but was not well enough to follow through.
The next session is 14 August at 2.00pm.”[26]
As I understand it, the Applicant’s reasons for delay in the filing of her Application late may be shortly stated, or summarised, as follows:
a) The Applicant was suffering from the effects and symptoms of COVID-19 in the first week of May 2023;[27]
b) On 5 May 2023 the Applicant lodged “a written enquiry” with the Commission. She received an automated response from the Commission advising that the Commission was experiencing a “high volume of enquiries”. She subsequently deleted this response and has not put a copy into evidence;
c) She was advised over the telephone by an employee of the Fair Work Ombudsman (FWO) on 11 May 2023 that she had a likely claim for unfair dismissal, and lodged a Form F2 unfair dismissal application with the Commission on that date;
d) She lodged a request for advice with the Commission on 12 May 2023, but such advice was never provided;
e) She sought independent legal advice from different lawyers between 12 and 26 May 2023, and was advised by a lawyer (Mr David Koschitzke of Harris Lieberman lawyers) on 26 May 2023 that she did not have a claim for unfair dismissal as she did not meet the minimum employment period. She “immediately” drafted (or completed) a general protections involving dismissal application on 26 May 2023 (but did not file it);[28]
f) She was only able to lodge (or file) her general protections involving dismissal application on 12 June 2023. This delay (between 26 May 2023 and 12 June 2023) occurred because she was suffering from a psychiatric injury during this time, which only eased enough for her to perform “simple tasks” on 12 June 2023.
g) All in all, the Applicant’s relies upon the combined impacts of psychiatric injury, financial stress, and a lack of legal advice and/or representation, in explaining the delay in filing her Application within time.[29]
In its submissions, the Respondent says that “the Applicant has done no more than adopt a scattergun approach in identifying any and all factual and contextual factors that may have existed”[30], and makes the following specific points:
a) The Applicant’s delay of 20 days is not an insignificant period of time.
b) There is no explanation as to why the Applicant deleted the alleged automatic response from the Commission received by her on 5 May 2023.[31]
c) There can be no suggestion that the Applicant was given wrong advice, or was misdirected by any advice she was given, to file her initial unfair dismissal claim as both the Commission and the FWO provide only general advice (i.e. not advice that can be relied upon, and not legal advice). Further, there is no evidence as to what the Applicant told the FWO on 11 May 2023, such that even if the FWO told her that her case “sounds like unfair dismissal”, such advice may have been based upon the failure of the Applicant to fully appraise the FWO of all of the relevant facts.[32]
d) It is clear that the Applicant was aware as early as 12 May 2023 that she did not meet the minimum employment period to file an unfair dismissal claim, noting that she writes in her written query to the Commission’s Workplace Advice Service on 12 May 2023: “I did not meet the minimum employment period”.[33]
e) Any suggestion by the Applicant that she was not aware of the 21 day time limit to file her Application also falls away on 12 May 2023, given that the Commission’s automated response to the Applicant’s query to the Commission’s Workplace Advice Service unambiguously states:
“Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application. If you need help faster than that, other legal help is available.”[34]
f) The Applicant’s assertion that she was not aware until 26 May 2023, after discussing her case with a lawyer, that she did not meet the minimum employment period simply cannot be accepted as it is in total contradiction to the evidence identified in subparagraph (d) above.[35]
g) The evidence of Dr Sowden does not assist that Applicant. Despite Dr Sowden stating that (in her opinion) the Applicant was not considered psychologically well enough to be able to access or complete the required application forms for a general protections application,[36] the actions and conduct of the Applicant between 17 May 2023 and 22 June 2023 tell a totally different story. Indeed, on the Applicant’s own evidence, she was able, or psychologically well enough, to:
i.attempt (albeit allegedly unsuccessfully) to contact or otherwise communicate with several local lawyers between 12 and 26 May 2023;
ii.speak to a lawyer (Mr David Koschitzke of Harris Lieberman lawyers) on 26 May 2023, explain her circumstances to him, and purportedly obtain advice from him that she did not meet the minimum employment period;
iii.complete, but not file, her Application on 26 May 2023 (the Applicant’s own evidence is that she immediately completed her Application on 26 May 2023, in the sense of immediately after speaking to Mr David Koschitzke of Harris Lieberman lawyers on 26 May 2023); and
iv.filed her Application on 12 June 2023 (i.e. despite Dr Sowden stating that the Applicant was not psychologically well enough to do so between the whole of the period 17 May and 22 June 20023, with the latter date extending 10 days beyond the date that the Applicant actually filed her Application).
h) The same applies to the assertions by Dr Sowden and/or the Applicant as to the impact of the Applicant’s asserted Adjustment Disorder (with anxiety and depressed mood) between 9 and 17 May 2023, i.e. the actions and conduct of the Applicant during this time period do not support an assertion as to total incapacity or total inability to function. In this regard, the Respondent submits:
“[30] … the Applicant has failed to establish that her anxiety disorder should be considered an ‘exceptional circumstances’.
[31] The Applicant was able to actively challenge the termination of her employment notwithstanding any generalised anxiety disorder.
[32] Specifically, the Applicant was able to file an unfair dismissal application within time on 11 May 2023. Evidently, the Applicant’s generalised anxiety disorder did not preclude her from filing the unfair dismissal application. It also did not preclude the Applicant from:
(a) contacting the FWO and lawyers following her dismissal;
(b) corresponding with the Respondent via email following her dismissal to arrange for the return of the Respondent’s company property and regarding her personal items remaining at the Respondent’s offices; and
(c) attending sessions with her clinical psychologist following her dismissal.
[33] The [Applicant] was not so completely incapacitated by her anxiety that it constituted an exceptional circumstances.
[34] …
[35] Separately, the Applicant’s witness statement refers to comments made by Dr Sowden in connection with the Respondent. The Commission has cautioned against accepting at face value evaluative, non-medical judgements made by medical practitioner (Latisha Herbert v Adairs Retail Group Pty Ltd[2019] FWC 5928, at [34]). For example, when considering a letter written by a medical practitioner which alleged that an employee suffered from generalised anxiety disorder and major depressive disorder due to workplace bullying, the Commission observed
“there is an assertion that workplace bullying occurred and yet the medical practitioner provides no grounds as to how he or she arrived at the conclusion, or whether he or she was qualified to do so.”
[36] The Respondent rejects that the Applicant suffered workplace abuse, bullying or mistreatment, however, in any case the Applicant’s medical evidence does not assist her. The Certificate alleges that the Applicant suffers from “generalised anxiety disorder secondary to workplace abuse and bullying”. It provides no context or justification for the assertion that the Applicant’s anxiety is due to workplace abuse and bullying. The Report similarly asserts that the Applicant was “subjected to severe racial vilification and emotional abuse”. Dr Sowden’s basis for this assertion is unclear.
[37] Further, the probative value of Dr Sowden’s letters is negligible, having regard to the almost sycophantic tone adopted in her letters. They state:
She has clearly been extremely brave with her high intelligence being a very strong internal protective factor for her.
It is extremely important to remember that Mis Mitchell has risen [above] significant adversity in her life and has gone on to be a substantial net contributor to our society.
It is important to note the strong ethical focus of Miss Mitchell, with her knowing all too well that it (sic) because of ethics she has been able to do so well to date. To harm a woman of this calibre is considered to be unconscionable.
[38] The Applicant does not enclose any medical evidence in support of her assertions at paragraph 60 of her witness statement. Such assertions should be treated with caution. Regardless, the Applicant’s stated medical conditions did not preclude her from completing a draft general protections application on or about 26 May 2023. Rather, the primary reason the Applicant did not file on 26 May 2023 was [on the Applicant’s evidence] financial.
[39] The Applicant’s medical evidence fails to establish that her diagnosed adjustment disorder or anxiety was sufficiently incapacitating or out of the ordinary course as to amount to an exceptional circumstance. Further, and in any case, the medical evidence provided by the Applicant does not account for the full period between the Applicant’s dismissal and her subsequent filing of the Application.”[37]
i) The Applicant’s claims as to financial stress cannot reasonably be said to be a reason or cause that contributed to the late filing of her Application. In any event, the Applicant’s claims to financial stress are not supported by evidence.[38]
j) The Applicant contracting COVID-19 in early May 2023, at or about the time of her dismissal, does not explain the Applicant’s delay in the filing of her Application during the 21 day time period, let alone thereafter (or 20 days late).[39]
In her closing oral submissions, Ms Dennis, summarised the Respondent’s position as follows:
“Ms Mitchell’s [the Applicant’s] evidence today supports the respondent’s submission that she does not possess evidence which satisfies the threshold for exceptional circumstances. For example, Ms Mitchell herself concedes that she was not so unwell or incapacitated to file an unfair dismissal application. It is Ms Mitchell’s evidence that she actively took steps to challenge her dismissal; she actively took and undertook her own research and inquiries, including with the Fair Work Commission and the Ombudsman; she actively sought to engage lawyers and have assistance with regards to legal advice; she engaged in email correspondence with the respondent; she engaged with her treating practitioner; she prepared and filed an unfair dismissal application within time, and yet the applicant is now seeking to assert that during the same time, she was prohibited from filing a general protections application within time due to an impairment.”[40]
Commission records
Commission records identify that:
a) on 11 May 2023 the Applicant filed with the Commission an unfair dismissal application against the Respondent (Commission Matter Number U2023/4084);
b) on 6 June 2023 the Applicant filed a general protections involving dismissal application against the Respondent (Commission Matter Number U2023/3279);
c) on 12 June 2023 the Applicant filed a second general protections involving dismissal application against the Respondent (Commission Matter Number U2023/3379). This is the Application the subject of these proceedings;
d) the applications in U2023/4084 and U2023/3279 were never served upon the Respondent, however, letters were sent to the Respondent notifying them of these applications; and
e) on 16 June 2023, the Applicant was contacted by Commission staff in relation to having three open and on-going matters before the Commission. The Applicant thereafter discontinued her applications in U2023/4084 and U2023/3279.
Of concern is that the Applicant, in her evidence, has made no mention of filing a general protections involving dismissal application with the Commission on 6 June 2023, nor has she referred to her contact with the Commission on 16 June 2023 (about having three matters open at the same time).
Consideration
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 per se). The fact that this information is easily accessible and publicly available to all persons, ought not be ignored, minimalised or diminished without very (very) good reason.
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. This is so even in a regional area, where there is access to telephone and internet, and thus access to legal services (paid and unpaid) beyond the regional area in question.
The Commission’s Telephone Helpline and web based information services (howsoever labelled or described) do not provide legal advice. This is clearly stated on the Commission’s website, which reads (to the effect): “As an Independent Tribunal, [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 any discussions or other communications that occurred between the Applicant and the Commission’s staff. I do not consider that I am in a position to speculate, let alone make a finding of fact, as to what transpired. In any event, whatever communication that did occur between the Applicant and the Commission’s staff, it could never be said to constitute advice (i.e. Commission staff cannot give advice or opinions, let alone provide legal advice or opinions).
The FWO does not provide advice, legal or otherwise, in relation to causes of action or remedies relating an employee’s dismissal. As the FWO website states: “Help with other kinds of workplace problems, such as health and safety and unfair dismissal, is the role of other organisations.”[41]
The filing of an application in the wrong jurisdiction, or the filing of an application that is jurisdictionally barred, can give rise to a finding as to the existence of exceptional circumstances, but all of the circumstances must be taken into account in making such a finding.
Whatever interactions the Applicant did or did not have the with Commission and/or the FWO, the timing of those interactions, between 5 and 12 May 2023, do not explain or otherwise justify the Applicant’s failure to file her Application post 12 May 2023 (and on or before 23 May 2023) in circumstances where the Applicant herself writes in her written query to the Commission’s Workplace Advice Service on 12 May 2023 “I did not meet the minimum employment period”.[42] In other words, the evidence discloses that the Applicant was aware as at 12 May 2023 that her unfair dismissal application could not proceed as she did not meet the minimum employment period, and any advice that she did or did not receive from the FWO or Commission cannot alter this fact.[43] In short, I am simply unable to accept any suggestion that as at 12 May 2023 the Applicant had some form of open request for information or advice repositing with the Commission’s Workplace Advice Service that was not resolved (or answered) until she spoke to a lawyer on 26 May 2023.
The Applicant’s own evidence equally discloses that the Applicant:
a) was aware of the 21 day time limit to file her Application on 12 May 2023 (some 11 days before the 21 day time limit expired on 23 May 2023);[44] and
b) completed her Application on 26 May 2023.[45]
What is not clear is the reason as to why the Applicant thereafter took yet a further 17 days (post 26 May 2023) to file her Application, i.e. beyond the Applicant’s claims that she was totally incapacitated from doing so.
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.[46] But such medical evidence is not simply taken at face value. A decision-maker is not required to accept evidence that he or she is not satisfied is credible merely because it has not been tested at a hearing. In many cases an impartial and reasonable analysis of an aspect of uncontested evidence will highlight its inconsistencies with other evidence in proceedings.
In this case, I am unable to accept that the medical evidence from Dr Sowden (as relied upon by the Applicant) explains or otherwise justifies the ‘whole’ of the lengthy (20 day) delay in the filing of her Application.[47] In this regard:
a) The Applicant completed her Application on 26 May 2023. All that was required thereafter was to file it electronically with the Commission.
b) Dr Sowden’s memorandum refers to a session she conducted with the Applicant on 25 July 2023.[48] The first paragraph of Dr Sowden’s memorandum speaks to information that has been conveyed to her by the Applicant on that day.[49]
c) The second paragraph of Dr Sowden’s memorandum states that the Applicant was “psychologically very ill” on 17 May 2023, with her symptoms continuing to be observed as “very severe” on 22 June 2023. In light of this, Dr Sowden states that she considers the Applicant to have been suffering severe functional impairment, with her not being considered psychologically well enough to be able to access or complete the required application forms for a general protections application, and that the Applicant attempted to submit a claim for unfair dismissal but was not well enough to follow through.[50]
d) The Applicant relies upon Dr Sowden’s memorandum as explaining her delay in filing her Application, but fails to explain in her evidence the inconsistencies between Dr Sowden’s conclusions as to her capacity (or incapacity) and her actions. In other words, during the period 17 May 2023 and 22 June 2022, the Applicant was unimpaired or psychologically well enough to seek out legal advice (between 12 and 26 May 2023), complete her general protections application (on 26 May 2023), and file her Application (on 12 June 2023).
e) The Applicant has been less than candid in her evidence, noting that Commission records identify that the Applicant filed a general protections involving dismissal application on 6 June 2023. This is important and significant information that the Applicant should have been open and upfront about in her evidence. It is also information that is totally inconsistent with Dr Sowden’s memorandum, and the Applicant’s own evidence, which reads:
“61. As stated in Dr Sowden’s letters, I was not fit to return to work of any kind, or for rehabilitation during this period. I could barely get myself out of bed or perform simple tasks due to the injury that I was suffering.
62. It follows that I was not physically or mentally able to prepare a second application at this time. I was only able to lodge the second general protections application on 12 June 2023, when the symptoms of my psychiatric injury eased enough for me to perform simple tasks.”[51]
For completeness, I do not accept that the evidence discloses that the Applicant’s financial stress justifies or explains the delay in the filing of her Application 20 days late.[52]
Having regard to the evidence and submissions of the parties, and in view of the findings I have made in foregoing paragraphs, I do not accept that the Applicant has provided credible or “probative evidence” confirming that she was ‘prevented’ (or unable) to file her Application within 21 days of her dismissal. The reasons for delay relied upon by the Applicant simply do not, or do not sufficiently, explain her 20 day 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[53]
The Applicant was aware of her dismissal by the Respondent on the day that it took effect (i.e. 2 May 2023). The Applicant filed an unfair dismissal claim on 11 May 2023, within 21 days of her dismissal. The Respondent was never served with a copy of this unfair dismissal application. It follows that the Applicant took steps to dispute her dismissal within 21 days of her dismissal, but these were steps that the Respondent was unaware of.
Simply because an employee puts their employer on notice that they dispute their dismissal does not mean that this criteria ought automatically weigh in favour of a finding as to the existence of exceptional circumstances. An employee making his or her employer aware that he or she is not happy about their dismissal, or will be contesting their dismissal (legally or otherwise), is not an out of the ordinary course, or unusual or special or uncommon circumstance.
The issue of whether or not an employer was or was not on notice that their former employee disputes their dismissal might be significant on a question of prejudice, but what weight it is given for the purposes of s.366(2)(b) of the Act is a matter for the relevant decision-maker. An employer notified that an employee disputes their dismissal is entitled to assume, or work on the basis, that the employee has 21 days post their dismissal taking effect to file an unfair dismissal or general protections involving dismissal application. An employee that puts his or her employer on notice that they dispute their dismissal ought not be entitled to automatic weight in favour of the existence of exceptional circumstances under s.366(2)(b) of the Act (or a subsequent exercise of discretion in their favour) merely because they have put their employer on notice that they (for whatever reason) dispute their dismissal. Albeit, each case will come down to its own facts and circumstances.
In this case, despite the Respondent receiving letters advising it that the Applicant had filed applications disputing her dismissal, such applications were never served upon the Respondent. Further, the Respondent received multiple letters advising that the Applicant had filed a claims against it (in U2023/4084 and U2023/3279). But the specifics of the how, and the why, a dismissal is being disputed is important, which the Respondent was never appraised of until such time as the Applicant’s Application in these proceedings was served upon it. This especially so in the specific circumstances of this case where the Respondent was ‘notified’ that the Applicant had filed an unfair dismissal claim against it, but the Applicant did not meet the minimum employment period.
In weighing this criterion in the facts and circumstances of this case, I treat the fact that the Applicant (wrongly) filed an unfair dismissal application, and/or put the Respondent on notice that she disputed her dismissal (including within 21 days of her dismissal), as a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Prejudice[54]
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).[55] I therefore treat this criterion as a neutral consideration.
Merits[56]
The principles stated Kyvelos v Champion Socks Pty Ltd[57] (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 …”.[58]
In Kornicki v Telstra-Network Technology Group,[59] 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.”
As I understand it, the Applicant says (in the broad sense) that she was dismissed for reasons of making a complaint or inquiry in relation to her employment, making a complaint or inquiry to a person or body with the capacity to seek compliance with a workplace law (including as to work, health and safety, rehabilitation and/or worker’s compensation), because she lodged a claim for worker’s compensation, and/or for discriminatory reasons (because she had a disability and/or because of race).[60] 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 reasons or issues associated with poor workplace conduct, returning a company vehicle in a poor and damaged condition (requiring $2,000 in repairs), and breaches of workplace policies and procedures (including in relation to social media posts) 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).[61] In short, the Respondent says that the Applicant’s dismissal arose not only because of her conduct, but because it formed the view that the Applicant was not suitable for the role on an on-going or permanent basis. I note that Mr John Martin, Chief Executive Officer of the Respondent, being the decision-maker in dismissing the Applicant from her employment, specifically rejects the Applicant’s claims as to the purported operative (unlawful) reasons for her dismissal.[62]
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. As SDP Richards stated in Wilson v Woolworths[63]:
“… the merits of the application have not been canvassed through the proper formal determinative process by which evidence is taken under oath and which is further adduced through the machinery of cross-examination and re-examination.”[64]
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).[65] 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.[66]
Fairness as between the Applicant and other persons in a similar position[67]
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 are the same, or similar, characteristics and/or circumstances.[68]
In Wedesweiller and Others v Robert William Cole and Others[69], Sheppard J deals with a particular set of circumstances in which there were approximately 190 similar applications before the Federal Court of Australia at that particular time, of which one of the 190 applications concerned the Applicant who was directly before Sheppard J requesting a time extension. In other words, the question of persons in a similar position in that case concerned whether a uniform approach ought be applied to employees in a similar position currently before the Commission or the courts.[70]
Both parties made submissions as to this criterion by reference to previous decisions of the Commission.[71] It is not apparent to me that questions of fairness under s.366(2)(e) of the Act relate to general considerations as to how the Commission has historically dealt with previous out of time applications that have been determined by other decision-makers based upon the specific facts and circumstances of those cases. Such cases are based upon the ultimate exercise of a discretion by the particular member concerned and have no, for want of a better term, ‘precedent value’ beyond their statements of law.[72] The suggestion that a decision-maker need trawl through or otherwise consider hundreds or thousands of previous out of time decisions to determine similarities and differences so as to determine how (and the basis upon which) persons in the past in similar or like positions have been treated is an affront to the ultimate discretion to be exercised in determining whether or not to grant an extension of time.[73]
I am not aware of any employees or cases, from a true comparator perspective, who are confronting, or who have confronted, the same, or similar, characteristics and/or circumstances as those being experienced by the Applicant. Further, even having regard to the previous out of time decisions that have been put before me by both parties, none of those cases are on all fours with the specific facts and circumstances of this case. I therefore 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).[74]
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 12 June 2023 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Renea Kumar of Counsel, instructed by Ms Isabella Orlic, Solicitor, BlackBay Lawyers, appeared with permission on behalf of the Applicant.
Ms Katherine Dennis, Principal Lawyer, Sladen Legal, appeared with permission on behalf of the Respondent.
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009.
[2] See Termination of Employment letter dated 2 May 2023, Exhibit R1, at [26]-[34] and Annexure ‘JM-7’, and Exhibit A1, at [45]. Transcript, PN115 and PN171. Notwithstanding that the Applicant did not receive her final pay or payment in lieu of notice as at 2 May 2023, there can be no suggestion that the employment relationship did not end on 2 May 2023. To find otherwise would be to wrongly conclude that because the employment contract ‘may’ have continued after 2 May 2023 (when final payment was made), the employment relationship equally extended to when final payment was made.
[3] [2011] FWAFB 975.
[4] Ibid, at [13]-[15].
[5] Ibid, at [14] and [30].
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, at [21].
[7] [2018] FWCFB 901.
[8] Ibid, at [17], [19], [38]-[39].
[9] [2002] FCA 845.
[10] (1987) 16 FCR 167, at 184.
[11] Elias v Commissioner of Taxation [2002] FCA 845, at [62].
[12] (1964) 38 ALJR 293.
[13] Ibid, at 301. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at 40-42, per Mason J, with whom Gibbs CJ (30), Deane and Dawson JJ (71) agreed.
[14] [1958] VicRp 98; [1958] VR 628.
[15] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd[2011] FWAFB 8446, 9 December 2011.
[16] Ibid, at [12].
[17] Section 366(2)(a).
[18] [2021] FWC 3903.
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[20] Ibid, at [40].
[21] [2021] FWC 3903, at [19]-[25].
[22] 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.
[23] Exhibit A1, at [55].
[24] Exhibit A1, at [45] to [63].
[25] Exhibit A1, Annexure “L”.
[26] Exhibit A2.
[27] Exhibit A1, Annexure “L”.
[28] Exhibit A1, at [55].
[29] Including by reference to the evidence relied upon by the Applicant as referred to at paragraphs [18]-[20] of this Decision.
[30] Transcript, PN302.
[31] Respondent’s Submissions, 17 July 2023, at [14]-[17]. Transcript, PN182.
[32] Ibid, at [18] to [20].
[33] Exhibit A1, Annexure ‘K’.
[34] Ibid.
[35] Respondent’s Submissions, 17 July 2023, at [24].
[36] Exhibit A2.
[37] Respondent’s Submissions, 17 July 2023, at [30] to [39].
[38] Ibid, at [40] to [41].
[39] Ibid, at [42].
[40] Transcript, PN309. See also at PN314-PN317.
[41]
[42] Exhibit A1, Annexure ‘K’.
[43] The decision in Nulty v Blue Star GroupPty Ltd[2011] FWAFB 975, at [26], refers only to “generally speaking” in relation to exceptional circumstances arising from incorrect advice received from a government department. The case of Nulty goes on to confirm that all of the circumstances must be taken into account: see, for example, [2011] FWAFB 975, at [27]-[30].
[44] Transcript, PN198 and Exhibit A1, Annexure ‘K’.
[45] Exhibit A1, at [55].
[46] 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].
[47] Exhibit A1, at [61] to [63].
[48] Pursuant to an appointment made on 24 July 2023; Applicant’s Chronology.
[49] Exhibit A2.
[50] Ibid.
[51] Exhibit A1, at [45] to [63].
[52] Transcript, PN190-PN191. The Applicant’s claims as to financial stress appear to be connected to her assertions about an inability to obtain legal representation.
[53] Section 366(2)(b).
[54] Section 366(2)(c).
[55] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[56] Section 366(2)(d).
[57] (1995) 67 IR 298.
[58] Ibid at 299 to 300.
[59] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[60] Form F8 at Items 2.1, and 3.1 to 3.3. I note that the Applicant’s witness statement (Exhibit A1) sets out various interactions she alleges occurred at the workplace, but her evidence does not specifically identify what she says was the operative reason/s for her dismissal. This is somewhat clarified in the Applicant’s Submissions, 10 July 2023, at [2] and [19]-[20].
[61] Exhibit R1, at [8]-[34].
[62] Ibid, at [35] to [38]. See Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726; (2009) 184 IR 333, at [37]-[42].
[63] [2010] FWA 2480.
[64] Ibid, at [23].
[65] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[66] Transcript, PN213-PN214.
[67] Section 366(2)(e).
[68] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[69] [1983] FCA 94; (1983) 71 FLR 256.
[70] Ibid, (1983) 71 FLR 256, at 262.
[71] See, for example, Transcript, PN202-PN248.
[72] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd[2011] FWAFB 8446, 9 December 2011, at [12].
[73] Ibid.
[74] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
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