Ryan Withers v Contare Pty Ltd
[2022] FWC 967
•2 May 2022
| [2022] FWC 967 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ryan Withers
v
Contare Pty Ltd
(U2022/2787)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 2 May 2022 |
Application for an unfair dismissal remedy – request for an extension of time – no exceptional circumstances – application dismissed
This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).
On 4 March 2022, Mx Ryan Withers (Applicant) filed an unfair dismissal application (Application) (under s.394 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission).
The parties are not in dispute that the Applicant was “dismissed” by their employer, Contare Pty Ltd (Respondent) on 4 February 2022, and was notified of their dismissal on that date.[1] The Applicant commenced their employment with the Respondent on 17 July 2017. The Respondent is a small business employer of around five employees.[2]
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s.394(3) of the Act). The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect.
The Applicant should have filed their Application on or before 25 February 2022. Given that the Applicant filed their Application on 4 March 2022, it has been filed 7-days past the 21-day statutory time limit (or four weeks after the date of the Applicant’s dismissal). Again, there is no dispute between the parties that the Applicant lodged their Application 7 days outside of the statutory deadline.
At the hearing on 19 April 2022, the Applicant was self-represented, and Mr Peter Broschofsky, Chief Executive Officer, appeared for the Respondent.
Legal principles
The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.394 of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star GroupPty 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)
In Mohammed Ayub v NSW Trains[5], a Full Bench of this Commission described “exceptional circumstances”, in the context of a dismissal out of time application, as being a “very high bar” and “strictly limited”.
The matters under s.394(3)(a)-(f) need to be considered separately, and in combination. Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may well be regarded as exceptional.[6]
Reason for Delay
On the issue of reason for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[7] (Bianco Mamo), 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.[8] 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.[9] However, in my view, that would be very rare.
The Applicant’s reasons for delay, as set out in their Application, and in an email to the Commission dated 18 March 2022, are that they suffer severe depression and anxiety which complicated their ability to file their Application. Further, the Applicant outlined in their Application, and in the email to the Commission dated 18 March 2022, that they had been suffering severe physical pain and mental distress as a result of a historic spinal injury, culminating in overwhelming pain, related medication issues, sleep disorder, physiotherapy consultations, meetings with numerous medical departments, and additional related complications. A hospital discharge report was filed in support of these contentions. The Applicant submitted that these factors reduced their ability to function and process matters, including filing their Application in the Commission within 21-days.[10]
In their Application, the Applicant added that they had submitted their claim on 1 March 2022 to the Fair Work Ombudsman erroneously, and were subsequently recommended to file their Application with the Commission.[11]
In accordance with directions issued by my Chambers, on 4 April 2022 the Applicant filed further material in support of their request for an extension of time. The Applicant reiterated that their Application was filed out of time as they were prioritising their mental and physical health. Notably, the Applicant:
Filed a medical certificate and discharge referral from the Royal Prince Alfred Hospital (RPA) dated 13 December 2021 which outlined that they were suffering from and treated for “Back pain – Lumbar Disc prolapse” and would be unable to “attend work/school from 13/12/2021 to 17/12/2021”.
Filed a Neurosurgery Letter dated 24 February 2022 which provided a discharge date of 25 February 2022.
Noted that they had “a lifelong history of depression and anxiety” that they had received many treatments for. The Applicant filed a safety contract from South Pacific Private, which was signed on 15 August 2020.
Filed a discharge referral from the RPA with an attendance date of 14 March 2022 and which noted that they were discharged home.
Stated that, on Friday 25 March 2022, they underwent spinal surgery at the RPA (the Applicant noted that they were awaiting the corresponding discharge letter)
At the hearing, when making oral submissions, the Applicant emphasised that their mental and physical incapacity and/or ill condition was not separately identifiable on the dates above, but was present throughout the period from December 2021 to March 2022.[12] In this regard, I refer to the following transcript exchanges:
“THE DEPUTY PRESIDENT: So, what do you say changed to allow you to file the application?
MX WITHERS: Time. I just - I was able to complete it when I completed it. Before that I was physically and mentally unable to.
THE DEPUTY PRESIDENT: How do I differentiate between the time you say you became able and the time before on the evidence as to some change in your position?
MX WITHERS: How do you differentiate?
THE DEPUTY PRESIDENT: Yes.
MX WITHERS: The ongoing treatment that I was receiving helped. There was consistent treatment. It's listed there that there were medication changes.
THE DEPUTY PRESIDENT: So, what document are you referring to there?
MX WITHERS: The 2, I think, March, the emergency department, from December through to March there's different medications listed (indistinct).
THE DEPUTY PRESIDENT: But none of that sort of indicates any level of incapacity.
MX WITHERS: Well, the ongoing medication and the changes, side effects, differentiated the change. I was - it's obviously hard to prove on paper mental health capacity and that's why this is - this feels very unnerving because it's hard to sort of show someone that mental health process has occurred, how they occur and when they occur. So, I was able to submit the application when I was - after working on it as best I could for a period of time. I'm not how to display the mental health aspect of it because it's not a tangible - - -
THE DEPUTY PRESIDENT: So, sorry, when do you say you started working on the application?
MX WITHERS: It was - I can't recall exactly because even beyond that time I was in such physical distress, completely out of it because of medication and because of no sleep, no function (indistinct). So, I can't recall when I began researching and learning what my rights - what position I had, what I could do about my situation. I can't recall the date exactly.
…
THE DEPUTY PRESIDENT: So, you downloaded a form did you from the Commission. When do you say you did that?MX WITHERS: I can't recall when I did that exactly. As I say, like it's a process that I was able to do what I was when I could, so it was in - I really can't remember honestly the dates on which I did what exactly.”
Additionally, the Applicant submitted that they were paid in lieu of notice, and therefore did not get the benefit of the notice period, plus the statutory 21-day period to lodge their Application.[13] The Applicant said that they spoke to the Fair Work Ombudsman on or about 1 March 2022 and submitted their Application shortly thereafter. Indeed, whilst not directly clear from the evidence, it appears that the Applicant first filed the Application (incorrectly) with the Fair Work Ombudsman, and the claim was filed thereafter with the Commission on 4 March 2022.[14]
The Respondent addressed the Applicant’s reasons for delay in their written submissions dated 5 April 2022, as well as orally at the hearing. In response to the Applicant’s reasons for the delay in filing their Application, the Respondent submitted that:
The Applicant’s spinal surgery, conducted on 25 March 2022, was a month beyond 25 February 2022 and therefore not relevant to the Applicant filing their Application within the 21-day statutory time-frame.
The medical certificate covering the period of 13 December 2021 to 17 December 2021 was well before the bona fide redundancy (dismissal), and therefore was irrelevant.
The clinical visit to a specialist at RPA on 24 February 2022 at 16:45 was of minimal impact (probably less than an hour) to the Applicant filing their Application. Further, the Respondent indicated that this date was one day before the statutory timeline limit, and stated that the Application should have been completed by this time.
The Applicant’s presentation to the emergency department on 14 March 2022 was after 25 February 2022, and therefore not relevant.
The August 2020 documents filed by the Applicant regarding their mental health occurred years before the bona fide redundancy (dismissal), and thus was not relevant.[15]
The Respondent pressed that there could be no connection between the events that the Applicant had put forward as their reasons for delay, and the Applicant’s failure to file the Application within the statutory timeframe.[16] Further, the Respondent stated that the Applicant’s reason for delay in filing their Application was due to a lack of care, and no other reason. The Respondent indicated that the Applicant could have sought the assistance of their “substantial personal network” to file their Application within the statutory time-frame.[17]
At the hearing, the Applicant submitted that the Respondent’s contentions in their written submissions were opinion laden. In this regard, I refer to the following excerpt of the transcript from the hearing:
“MX WITHERS: Yes. So, there's a lot of opinion presented as facts, so the suggestion that my approach has been lax and excuse laden. There's no knowledge of that, that's just opinion rather than fact, and disregards a lot of the facts that I have presented. It says that the specific - in regards to the documents I have sent in, the respondent has said that (indistinct) which is (indistinct) March and beyond the time limit, again obviously indicates that there were issues prevalent during that time. Obviously (indistinct) is after but the need for it was during the time. And I have got that.
As you say the time (indistinct) filing documents I had a lot of trouble getting my discharge history from the hospital but I have that now. Just to sort of factually prove that date of February. So, the medical certificate which is a part of the discharge letter I didn't - that wasn't included as those dates 13 December to (indistinct) December are relevant to this particular matter. That was included as the one document.
They say the clinical visit at 4.45 on 24 February, they've suggested was probably less than an hour, I'm not sure how they would have knowledge of that or why they would make that claim. Again, opinion (indistinct) fact and the appointment was not at 4.45 on the 24th, it was at 3.30. So I'm just not sure where they're getting some of these ideas from. And they've said that it should have been completed by then and that again is personal and unnecessarily - unnecessary opinion that's got no bearing on legitimacy when they believe it should have been completed by 24 February. I just think that's misleading.
My presentation to the emergency department on the 14th, again they've stated it's beyond 25 February. That's as a result of my condition worsening during that period, the 21 day period. That seemed obvious to me that it was - that that was the issue.
The August 2020 documents - they've said the August 2020 documents regarding mental health which was the year before the redundancy is not relevant but I feel like that that's very misguided and very troubling because mental health doesn't occur once and then go away. It's not an issue that - it's prevalent and it's something that I sought treatment for two years ago and that's the evidence that provided. So again I think that that's irrelevant because I had mental health treatment two years ago, it's very strange to me and I feel is inappropriate and speaks to how mental health isn't understood and used against people.”[18]
The Respondent and Applicant made further oral submissions regarding the reasons for delay. I note the following from the transcript of the hearing:
“MR BROSCHOFSKY: In terms of just things in addition to the objection, in addition to those five dot points, namely the spinal surgery date 25th - you know, the medical certificate of December 21, the clinical visit of the 24th, presentation to the ED of 14 March and August 2020 documents regarding his mental health, all of which were outside the 21 days, I do make note of the fact that Ryan was - had the wherewithal on 14 February to work through the significant administrative activities required to prepare (indistinct) separation.
I am aware of that process to some degree and I would argue that possibly, that process possibly would take more forethought, foresight and time administratively than preparing, you know, the required documentation for a Fair Work claim. So he was able to do that within the timeline and actually reasonably quickly after receiving (indistinct) 11 February, yet despite that was unable to submit the documents required within the timeline to prepare the Fair Work administrative activities to make the claim. So I'll make that point. I think that's an important point to make.
In terms of - just in reference to a couple of his comments to my or to the responding objection, he made a comment about opinion. Well, I would counter that by saying that - I know we're not talking about the specific unfair dismissal at the time but his unfair dismissal is full of opinion. In terms of his comment about the 4.45 time on the clinical visit document from the RPA, he mentions 3.30. Well, the 3.30 time was submitted on 13 December 21, not on the visit of 24 February.”
…
THE DEPUTY PRESIDENT: Thank you. Mx Withers, did you have anything to say in response?
MX WITHERS: Yes. I have heard the pronouns he and his were used consistently throughout that. In terms of the Centrelink, I requested the employment separation certificate. That's a process I'm familiar with, I've done that before. I'm familiar with Centrelink. I have applied to Centrelink several times in my life, I'm familiar with those processes. I have in fact presented opinion in my application which I believe a lot of this is, one person's reality, one person's opinion or beliefs, that obviously plays into such claims to some degree. I believe I've submitted it as opinion not as necessarily fact or I haven't claimed to know the motivations necessarily of behind scenes. I've presented, I believe, for the most part what I believe has happened instead of actual presumed knowledge about someone's motivations or personal situations in any way.
The appointment that I have for the specialist was not - that was not at 4.45, I'm not sure why that's being brought up again.”[19]
I concur with the Applicant’s contention that much of the Respondent’s submissions and assertions were not supported with evidence and are indeed statements of opinion.
In regard to the Applicant’s reasons for delay, I raised with the Applicant during the hearing the ability to differentiate between their condition prior to the time of filing and/or at the time of filing, in the sense that the Applicant asserted that they were incapacitated or hampered to such an extent that they could not file their Application until the 4 March 2022.
Further, the Applicant’s assertions regarding the reason for delay, in terms of suffering severe depression, suffering physical pain and being focused on therapy, are quite broad. There is no doubt that the submissions by the Applicant as to the position they were in are true, however, the Applicant’s submissions do not account for the specific timelines or dates in issue.
In Bianco Mamo, Deputy President Easton extrapolated principles that should be considered when assessing a reason for delay arising from mental illness and/or associated incapacity. In this regard, I rely upon the following paragraphs of Bianco Mamo:
“[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[20] 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.[21][22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[22] 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][23] In Merhi v Commonwealth of Australia[24] 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.”[25][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).”
(emphasis added)
The reasons for delay advanced by the Applicant lack specificity. As articulated in Bianco Mamo, mental illness and/or associated incapacity might point towards exceptional circumstances if the illness had a material impact on the Applicant’s capacity. But the evidence should demonstrate the specific impact the incapacity has had upon an applicant so as to prevent or otherwise hinder their lodging of their Application within the statutory timeframe. In my view, the evidence submitted from the Applicant does not satisfactorily demonstrate that the Applicant’s mental illness and/or associated incapacity prevented the lodging of their Application from 4 February 2022 to 25 February 2022, as well as before and after these dates. Therefore, it cannot be substantiated (on the evidence) that the Applicant’s alleged mental illness and/or incapacity (associated or otherwise) had a material impact upon their ability (or inability) to comply with the statutory timeframe to file the Application.
Even if the Applicant’s filing of their Application with the incorrect government body (the Fair Work Ombudsman) was accounted for, the Applicant’s Application would still be out of time by at least five days. I note that filing an application (mistakenly or otherwise) with an incorrect government agency does not in of itself give rise to exceptional circumstances, especially given the wealth of information readily available and accessible on the Commission’s website in relation to both unfair dismissal and general protections involving dismissal applications.
For the purposes of this decision, I consider that the Applicant’s reasons for delay (associated with or related to the Applicant’s asserted physical incapacity and/or mental illness/incapacity) do not weigh in favour of a finding as to the existence of exceptional circumstances, rather, they weigh against any such finding.
Whether the Applicant became aware of the dismissal after it had taken effect[26]
There is no dispute between the parties that the Applicant became aware of their dismissal by way of a written letter dated 4 February 2022, titled 'Notice of redundancy’, on the day it took effect, being 4 February 2022. I therefore do not consider this criterion as one that weighs in favour of a finding as to the existence of exceptional circumstances. I treat it as a neutral consideration.
Action taken by the Applicant to dispute his dismissal[27]
There is no dispute between the parties that the first time the Respondent became aware of the Applicant's dismissal was after receipt of the Application. I consider the inaction taken by the Applicant to dispute their dismissal prior to lodging their Application as a factor that weighs neither for or against a finding as to exceptional circumstances, and consider it a neutral consideration.
Prejudice[28]
The next criterion to be considered is any prejudice to the employer, including any prejudice caused by the delay. I note that neither the Applicant nor the Respondent have made submissions regarding the issue of prejudice.
The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor automatically weighing in favour of a finding as to the existence of exceptional circumstances.[29] I therefore treat this criterion as a neutral consideration.
Merits[30]
The principles stated in Kyvelos v Champion Socks Pty Ltd[31] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth 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 …”.[32]
In Kornicki v Telstra-Network Technology Group,[33] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. 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.”[34]
In their Application and submissions, the Applicant relevantly alleges that their dismissal was not a genuine redundancy within the meaning of s.389 of the Act. The Applicant submitted that their dismissal arose following the filing of an internal bullying and harassment complaint/s with the Respondent. The Applicant stated that their previous tasks and duties were still required to be performed at the workplace as at the time of the hearing. Albeit, the Applicant conceded that these duties have been outsourced to another individual, being the individual that the Applicant had made the bullying and harassment complaints about.
The Respondent identified that it is a small business employer, and submitted that there were no alternative roles available for the Applicant to perform. The Respondent inferred that the Applicant was not covered by an Award, meaning that the Respondent was not obliged to follow the consultation process referred to in s.389 of the Act. The Respondent filed evidence supporting the contention that the Applicant’s role had been outsourced for genuine operational reasons, including an executed outsourcing agreement titled “Re: Provision of Warehouse Services to Contare”.[35]
The merits of the Applicant’s case, by reference to their allegations, and the Respondent’s counter assertions, were not fully tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to an applicant to lodge their application).[36] That said, on the basis of the evidence that was before me at the hearing, it is agreed that the Applicant's position was outsourced, and the Respondent points to what appears to be cogent facts and evidence amounting to what may well be a genuine redundancy under s.389 of the Act. Taking into account the small number of employees in the workplace, it appears that the Applicant would struggle to identify a suitable alternative role that the Applicant could relevantly have performed or been retrained for. Albeit, I note that the Applicant contests this, and says that they were effectively dismissed for raising workplace complaints (and not for reasons of redundancy).
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits 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[37]
Finally, 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.[38] 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 the criteria set out under s.394(3)(a)-(f) of the Act. In this regard:
(a) none of the requisite criteria, considered individually, point towards the existence of exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[39]
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 of exceptional circumstances warranting the grant of an extension of time for the Applicant to file their Application.[40] In view of this finding, there is no basis at law for me 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 4 March 2022 is dismissed, and an Order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mx Ryan Withers (the Applicant), appeared for themselves.
Mr Peter Broschofsky, Chief Executive Officer, appeared for the Respondent.
[1] Form F2 q. 1.3-1.4 and Form F3 q.1.2-1.3.
[2] Transcript PN185.
[3] [2011] FWAFB 975.
[4] Ibid.
[5] [2016] FWCFB 5500.
[6] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[7] [2021] FWC 3903.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[9] Ibid, at [40].
[10] Form F2 q 1.5. Applicant’s email to VP Catanzariti’s Chambers dated 18 March 2022.
[11] Form F2 q 1.5.
[12] Transcript, PN74
[13] Applicant’s submissions of 4 April 2022.
[14] Ibid.
[15] Respondent’s submissions of 5 April 2022.
[16] Ibid.
[17] Ibid.
[18] Transcript, PN94 – PN98.
[19] Transcript PN131 – PN138.
[20] Glyn Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226.
[21] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].
[22] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435 at [15]-[16].
[23] [2015] FWCFB 3435 at [15].
[24] Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human
Services) [2020] FWCFB 3523 at [8], [37]-[39].
[25] Ibid.
[26] Fair Work Act 2009 (Cth) s.394(3)(b)
[27] Ibid s.394(3)(c).
[28] Ibid s.394(3)(d).
[29] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[30] Fair Work Act 2009 (Cth) s.394(3)(e)
[31] (1995) 67 IR 298.
[32] Ibid, at 299 to 300.
[33] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[34] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[35] Respondent’s submissions of 16 March 2022.
[36] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[37] Fair Work Act 2009 (Cth) s.394(3)(f)
[38] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[39] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[40] Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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