Scott v Steritech Pty Ltd t/a Steritech

[2019] FWC 2970

[2019] FWC 2970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365—General protections

Michael Scott
v
Steritech Pty Ltd t/a Steritech
(C2018/4785)

DEPUTY PRESIDENT SAMS SYDNEY, 10 MAY 2019

Application to deal with contraventions involving dismissal – dismissal of longstanding employee for reasons of redundancy – employee claims he was dismissed due to illness and his absences – application lodged ‘out of time’ by two days – whether ‘exceptional circumstances’ exist to grant an extension of time to lodge the application – delay caused by mental state of employee and representative error – ‘exceptional circumstances’ established – extension of time granted – application referred to Practice Leader for allocation to a Member.

INTRODUCTION

[1] On 30 August 2018, Mr Michael Scott, filed an application, pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a General Protections (‘GP’) application involving a dismissal. Mr Scott was employed by Steritech Pty Ltd (‘Steritech’ or the ‘respondent’) for a period of over 15 years. The respondent is engaged in the sterilisation and fumigation industry. It has 62 employees nationally, 12 of whom are located in Queensland. Mr Scott was employed as its Queensland Operations Supervisor at its Narangba site, until his employment was terminated on 7 August 2018 for reasons of redundancy. It was the respondent’s position that as a result of a business review, two positions were made redundant, one of which being Mr Scott’s Supervisor position. Mr Scott disputes his redundancy and claims he was neither warned, nor consulted about his alleged redundancy. His originating application asserts that he was dismissed because of his temporary absence due to illness, in breach of s 352 of the Act. Unsurprisingly, Steritech strongly rejects this assertion and maintains his dismissal was a consequence of genuine redundancy.

[2] It is common ground that Mr Scott’s GP application was lodged out of time, being 2 days outside the 21 day time limitation set out in s 366(1) of the Act. Mr Scott’s originating application expressly seeks an order from the Commission that his application’s lodgement time be extended due to ‘exceptional circumstances’, pursuant to s 366(2) of the Act. The respondent opposes an extension of time being granted by the Commission.

[3] On 18 September 2018, the respondent advised Deputy President Kovacic’s Chambers that it would not consent to a s 368 conference until the ‘out of time’ issue was determined. It was agreed the matter could be determined ‘on the papers’. However, when the matter was remitted to me, I formed the view that a hearing was necessary in order to resolve a number of evidentiary conflicts. Therefore, I convened a phone directions conference with the parties, on 3 October 2018, which was subsequently relisted due to unavailability of the respondent’s Queensland General Manager and Mr Scott’s hospitalisation. Directions were issued on 5 November 2018 for a hearing of the ‘out of time’ issue on 14 February 2019. Accordingly, this decision will deal only with that question.

[4] At the hearing, Ms S Moody of Counsel, instructed by Mr H Trotman, Queensland Workplace Law, appeared with permission (and not opposed) for Mr Scott, pursuant to s 596 of the Act. Mr D Miller, with Mr S Rinkevich from Ai Group, appeared with Mr G Robertson for Steritech.

THE EVIDENCE

[5] The following persons provided statement evidence in the proceeding:

•  Mr Michael Scott – the applicant;

•  Mrs Margaret Scott – the applicant’s wife;

•  Mr H Trotman – the applicant’s legal representative;

•  Ms Kym Sandra Morrison – Human Resources Manager Steritech;

•  Mr Glenn Robertson – General Manager, Queensland; and

•  Mr Allan Noel Smith – NSW Operations Coordinator.

Only Mr Scott was required for cross examination.

Mr Michael Scott

[6] In 2016/17, Mr Scott developed a medical condition which was ultimately diagnosed and which required surgery. This resulted in some 22 periods of absence in 2017 and 18 in 2018. As he had accrued significant personal leave, all of the absences were covered by sick leave up until March 2018. He claimed the respondent was well aware of his circumstances and was kept informed of his progress. He said he began to feel better at the beginning of 2018 and advised the respondent that he would be ready to return to work in June of that year. Mr Scott was assessed by Dr O’Sullivan as being fit to return to work to his pre-injury duties on 9 April 2018.

[7] Mr Scott said that in or about September/October 2017, Steritech’s CEO announced to all employees in Victoria, NSW and QLD that the business was building a new plant in Melbourne, but no one would be losing their job as a result. Mr Scott said that prior to 7 August 2018, he had no notice of any redundancies, even though throughout his illness and treatment, Ms Morrison had been in regular contact with him and could have informed him Steritech was considering redundancies.

[8] On 7 August 2018, after commencing work, Mr Scott was informed by Mr Glenn Robertson as follows:

‘a. might aswell (sic) get this done

b. you are being made redundant

c. it’s a forced redundancy because they are saving pennies for their new plant’.

[9] Mr Scott said he was so shocked and traumatised by this decision, he did not have an accurate memory of what occurred between 7 and 30 August 2018. He relied on refreshing his memory from:

•  his wife;

•  his medical records; and

•  emails to, and from, Mr Hunter Trotman.

[10] Mr Scott said it was he and his wife’s intention to plan their future based on him working at Steritech until retirement. He now felt he had let his wife and his family down, and felt worse knowing his age and specialised work experience, would make it difficult for him to find alternative employment. It was Mr Scott’s evidence that after his dismissal, he spent his time at home in a deep state of depression. He consulted Dr K Ikramova on 16 and 19 August 2018, and on 17 September 2018, he was admitted to the Calboolture Hospital Adult Mental Health Unit where he was diagnosed with moderate to severe depression. Medical and hospital records were attached to his statement.

[11] Mr Scott came to believe that the real reason for his redundancy was not for Steritech to save money, but rather because of his illness and the time taken off for treatment. His wife suggested he speak to a lawyer and on 15 August 2018, he spoke to Shine Lawyers. He admitted that because of his severe depression, and that the lawyer did not have much confidence they could help him, he did not take the matter further. However, on 27 August 2018 he called Queensland Workplace Law and spoke to Mr Hunter Trotman. He asked Mr Trotman whether his redundancy was genuine, if he was paid his entitlements and whether he could do anything about Steritech falsifying documents.

[12] Mr Trotman called him back on 29 August 2018. Mr Scott told him that he believed the real reason he was dismissed was because of his illness, as Mr Robertson had repeatedly said he was fearful he would have a heart attack at work and sue Steritech. He believed the secondary reason was that Mr Robertson knew he was aware of his (Mr Robertson’s) deliberate falsification and destruction of records. Mr Trotman advised him to make a GP claim. The application would be late anyway, as the 21 day time limit had expired on 28 August 2018. He now understood that 29 August 2018 was the last day he could have filed the GP application.

[13] In a second statement, in response to Steritech’s filing of workers’ compensation claim documents, dated 16 August 2018, Mr Scott denied completing the application. He had not seen Dr Ikramova on 16 and 19 August for that purpose. He believed Dr Ikramova had filled out the application, and she would send it on his behalf. He did not understand what it was, nor did he inquire. He subsequently discontinued this application, as his condition improved.

[14] It was Mr Scott’s evidence that he had previously trained another worker, David Cross. Mr Cross acted in his role during his absences. When he attended the wedding of co-worker on 17 November 2018, which Mr Cross also attended, Mr Cross had said: ‘sorry for taking your job mate’. He now believed that Mr Robertson’s decision to dismiss him, was to give Mr Cross the role.

[15] Mr Scott agreed he called Mr Allan Smith on 8 August 2018 to inquire if there were any redundancies at the Sydney plant. He had suspected if his job was redundant, others would also have been made redundant.

[16] In further evidence in chief, Mr Scott agreed that the two steps he took to inquire about his dismissal were on 15 August and 27 August 2018 when he contacted Shine Lawyers and Queensland Workplace Law, respectively. He said he was pushed to do something by his wife, as he was in an extremely depressed state. He felt he had gone from a well-paying job to being no one or nothing. He would just sit staring in front of the TV for six or seven hours at a time, was on medication to help him sleep and had seen Dr Ikramova on 16 and 19 August 2018. His admission to hospital was because he was suicidal had attempted self-harm. Although this happened in September 2018 (well after the 21 day time limit), Ms Moody sought to demonstrate Mr Scott’s deteriorating mental state before hospitalisation, originated from his dismissal.

[17] Mr Scott claimed that as he was heavily medicated in December 2018 and being treated by Dr Slack, his memory is not good on events during that month. Also during this period, he had prepared his statement for these proceedings. He had no memory of lodging the Workcover application. The handwriting could be his, but he could not be sure. He now said he did not know if he filled out the form. However, it was not his usual signature.

[18] In cross examination, Mr Scott was asked why his first name was spelt differently in the Workcover claim form. He said he spells it both ways (Michael or Micheal). If Dr Ikramova had filled in the form, he agreed it was unlikely she spelt his name wrong. As to him having no idea what a Workcover claim is, Mr Scott agreed he had made a Workcover claim in June 2018, but he just filled in the form and Ms Morrison took care of it.

[19] Mr Scott agreed he had showed his letter of redundancy to Shine Lawyers on 15 August 2018 and sent it to Mr Trotman on 28 August 2018. He said that around this time he was seeing three doctors, Dr Ikramova, Dr Slack and Dr Keys, as he was becoming more and more unwell. He had not reported his self-harming at the time, as he was hiding it from everyone, including his wife.

[20] In re-examination, Mr Scott said no one at Shine Lawyers mentioned unfair dismissal or adverse action remedies. However, he had lengthy discussions with Mr Trotman, who recommended an adverse action claim. He accepted that recommendation. The person he spoke to at Shine Lawyers was not specialised in industrial matters, and had only wanted to speak about his injury. Mr Scott said that Dr Keys’ specialisation was pain management and Dr Ikramova had dealt with his depression.

Mrs Margaret Scott

[21] Mrs Scott described her husband’s work life at Steritech and the medical symptoms he developed in 2016/17. Mr Scott’s condition was originally misdiagnosed and ultimately required surgery.

[22] Mrs Scott deposed that until recently, Mr Roberston and his family were friends and both Mr Robertson and her husband started work at Steritech in 2003. She had secured employment for Ms Sarah Jones as Mr Robertson’s PA. Ms Jones had told her that Mr Robertson had formed a view that her husband might have a heart attack. Mrs Scott told her his condition had nothing to do with his heart.

[23] From 7 August 2018, Mrs Scott claimed her husband’s wellbeing worsened and he was desperately unhappy. In September (no date), she returned home from work to find her husband had self-harmed. Mr Scott was taken to hospital and spent from 14 September to 12 October 2018 in Calboolture Hospital Adult Mental Health Unit. Mr Scott’s treating psychiatrist had informed Mrs Scott and her husband that despite his discharge, he was continuing to suffer depression and anxiety because of his dismissal. Mr Scott was admitted to Pine Rivers Private Hospital Mental Health Facility on 20 November 2018.

[24] Mrs Scott agreed she had told her husband the reason he was dismissed was because of his illness and his time off work. She encouraged him to speak to a lawyer.

Mr Hunter Trotman

[25] Mr Trotman set out the circumstances leading to his Firm lodging Mr Scott’s GP application. On 27 August 2018, he received a call from Mr Scott who informed him of his redundancy. Mr Scott had sounded agitated and anxious. He asked Mr Scott for a copy of his termination letter to review. On 29 August 2018, having reviewed the letter, he contacted Mr Scott and explained the difficulties in contesting redundancy cases. After Mr Scott told him he believed he was dismissed due to his illness, they discussed a GP application and Mr Scott instructed him to prepare and lodge the application.

[26] Mr Trotman acknowledged that he mistakenly believed the 21 day time limit expired on 28 August 2018 and therefore Mr Scott would still require an extension of time to file a late GP application. This was why he did not file the application until 30 August. The delay (mistake) was entirely his fault and not Mr Scott’s.

[27] Mr Trotman provided a second statement that essentially confirmed his earlier statement, including that when Mr Scott first contacted him, he appeared irrational. Mr Scott had alleged a deliberate cover up of falsifying breaches by the respondent. He told Mr Scott his Firm did not deal with such matters. He corrected his earlier statement as to the time he received Mr Scott’s email of 28 August 2018 (from 4.08pm to 10.30am). He could not recall the time on 29 August 2018, when Mr Scott instructed him to prepare and lodge a GP application.

[28] It would appear that in carefully selected words, Mr Trotman now asserted that his representative error in mistakenly calculating the 21 day time period, was ‘regrettable’ and ‘embarrassing’, but not a concession he was prepared to make. He claimed he had not neglected the matter, but the delay was because he was too busy attending to other matters. Notwithstanding this curious non-concession, he said his Firm’s priority was to always ensure applications are filed within statutory time limits.

[29] In a third statement, Mr Trotman elaborated further on his interactions with Mr Scott and gave evidence that on both 28 and 29 August 2018, he started work at 4am because he ‘had so much work to get through’ (as a sole practitioner).

[30] Mr Trotman explained it was not until he received Mr Scott’s redundancy letter at 10.30am on 28 August 2018, that he knew Mr Scott’s termination date was 7 August 2018. At the time, he had been under the impression Mr Scott wanted to file an unfair dismissal claim. Given the six month cap on compensation and that Mr Scott had been paid significant redundancy benefits, this was why he felt there would be little point in pursuing an unfair dismissal application.

[31] Mr Trotman claimed that during their conversation on 27 August 2018, he found Mr Scott to be not very coherent. Mr Scott was rambling and angry as to what had happened to him. He now understood Mr Scott was suffering from severe depression at the time. He said that despite it being his usual practice, he did not read Mr Scott’s email until around 4.10am the following day, 29 August 2018, as he was busy with other files and preparing for a conciliation conference on 28 August 2018.

[32] Mr Trotman said it was not until he had a further discussion with Mr Scott on 29August at around 3pm, that he realised Mr Scott had grounds for making a GP application. He mistakenly understood that the 21 days had expired on 28 August 2018 and it would be ‘out of time’, even if it was filed on 29 August 2018.

[33] Mr Trotman said that Mr Scott’s statements were prepared with the assistance of his wife, while he was in hospital.

[34] Mr Trotman made the following admission:

‘As a result of briefing counsel in these proceedings, it has come to my attention that there may two errors on my part which caused Mr Scott’s General Protections Application to be filed out of time which I had not previously appreciated; namely:

(a) My failure to read Mr Scott’s email and Termination Letter on 28 August 2018. Had I done so, Mr Scott’s General Protections Application could have been filed on that date and within time.

(b) My failure to file a general protections application for Mr Scott on 29 August 2018, which is the date on which I first realised Mr Scott had such a remedy. As I knew the time for filing such an application had already expired on 28 August 2018, I believed it wouldn’t matter if the application was filed 2 days out of time compared to 1 day out of time. I now appreciate that that view was in error. ‘

For Steritech

Ms Kym Morrison

[35] Ms Morrison has been employed in Human Resources for the respondent for 20 years and had known Mr Scott through his period of employment. She attached Mr Scott’s leave history since 2010 and said that around January 2018, it was noticed that Mr Scott had exhausted all of his personal leave accruals. She said that despite not being required to do so, she and Mr Robertson agreed to allow Mr Scott to access his annual leave and long service leave accruals.

[36] On 20 August 2018, Ms Morrison received a workers’ compensation claim and medical certificate from Mr Scott. Steritech denied liability and denied knowing about any incidents at work resulting in any injury. The Company had never been informed of any incidents by Mr Scott, despite him having four earlier workers’ compensation claims in 2005, 2007, 2017 and 2018. She believed the claim was fictitious and in retaliation for his redundancy on 7 August 2018. After communicating with Workcover Queensland (‘Workcover’) in late September 2018, she received advice on 18 October 2018, that Mr Scott’s workers’ compensation claim had not been accepted.

[37] Ms Morrison agreed that the respondent declined to participate in a conciliation conference of this application and as it wished to firstly have its jurisdictional objection heard and determined.

[38] In a reply statement, Ms Morrison considered that the handwriting on the Workcover application, said to be Dr Ikramova’s, was in fact Mr Scott’s. It was markedly similar to other examples of his handwriting and Mr Scott habitually interchanged the spelling of his name (‘Michael’ with ‘Micheal’) at work. This was an error unlikely to have been made by the Doctor. She rejected Mr Scott’s claim that he did not know what a Workcover application was, as Mr Scott had made four previous workers’ compensation claims: see [36] above.

[39] Ms Morrison rejected Mr Scott’s evidence that he had discontinued his workers’ compensation claim of 18 June 2018. Rather, she had been informed by Workcover that the claim had been rejected. She said Mr Scott had made another workers’ compensation claim on 31 October 2018, relating to an alleged injury arising from his redundancy. On 29 January 2019, this application was also not accepted by Workcover.

Mr Glenn Robertson

[40] Mr Robertson’s statement was largely corroborative of Ms Morrison’s evidence. He said that he would always attempt to accommodate Mr Scott’s absences and assist him where possible, including by allowing him to access his accrued annual and long service leave.

[41] Mr Robertson added that on many occasions, Mr Scott would return to work, without a medical clearance and on one occasion in October 2017, having been discharged from hospital in the morning, Mr Scott arrived at work while he was still under medication. When Mr Scott operated a forklift, he ran into a bollard, a delivery van and cool room door. The incident was captured on CCTV. Mr Robertson had discussions with Mr Scott and sought advice from Mr Scott’s Doctor as to his medication and its side effects.

[42] Mr Robertson claimed that Mr Scott’s position was identified as redundant following a review of the Narangba’s site requirements. He said that as a gesture of good will and recognising his long service, Mr Scott was paid an additional 4 weeks’ pay.

Mr Allan Noel Smith

[43] Mr Smith has been employed by the respondent for over 27 years and has oversight of the operations at the Wetherill Park factory in Sydney. He has known Mr Scott throughout his employment.

[44] Mr Smith’s evidence dealt with a phone call from Mr Scott on 8 August 2018 in which he informed him he had been ‘let go’. Mr Scott inquired if anyone at Wetherill Park or Dandenong had been made redundant. Mr Scott had said he was disappointed someone with his knowledge and experience could be let go. Mr Smith told him he had no knowledge of any Dandenong redundancies. He told Mr Scott that the Administration Officer at Wetherill Park was recently made redundant and Mr Scott appeared surprised by this.

[45] Mr Smith claimed that during this 5 minute call, Mr Scott sounded upset, but they had a clear conversation. He had not spoken to him since.

SUBMISSIONS

For Mr Scott

[46] Mr Trotman set out the background to the matter and the relevant statutory provisions (s 366(2)) applicable in this case.

[47] As to the reasons for the delay, Mr Trotman noted that Mr Scott had been diagnosed with moderate to severe depression/separation anxiety; a condition for which he was ultimately admitted to hospital on 17 September 2018. Prior to this, he had seen Dr Ikramova on 16, 19 and 23 August 2018. Her provisional diagnosis was PTSD. In addition, Mr Trotman accepted full responsibility for his failure to file the GP application on 29 August 2018. This constituted representative error, for which Mr Scott was entirely blameless. Both circumstances provide a reasonable explanation for the delay in filing of two days.

[48] As to any action taken by Mr Scott to contest his dismissal (s 366(2)(b)), Mr Trotman noted his attendance at Shine Lawyers on 15 August 2018 and contact with his Firm on 27, 28, 29 and 30 August 2018. This weighs in favour of granting the extension of time. Further, there is no prejudice to the employer by such a short delay (s 366(2)(c)).

[49] Mr Trotman submitted the Commission would accept that Mr Scott’s belief that he was dismissed because of his illness and absences, would be accepted by the Courts; see: Kavassilas v Migration Training Pty Ltd [2012] FMCA 22 (s 366(2)(d)). Mr Trotman said it was clear that Steritech was, at all times, aware of Mr Scott’s illness and had often directed him to seek medical clearances to return to work. Moreover, the respondent had not complied with its consultation obligations under the Steritech Agreement, even if there was an operational need to make Mr Scott redundant.

[50] Mr Trotman submitted it was only necessary for Mr Scott to demonstrate his GP application is not without merit; see: Kornicki v Telstra-Network Technology Group AIRC Print P3168 22 July 1997 (‘Kornicki’). He has a strong prima facie case because:

(a) he has given evidence of his absences from work;

(b) he was cleared fit to return to work on 30 October 2017 and 9 April 2018;

(c) Mr Robertson expressed to Mr Scott his belief that Mr Scott would suffer a heart attack and sue the respondent;

(d) a representation was made by the respondent’s CEO in September or October 2017, that there would be no loss of jobs arising from the relocation of the respondent’s Melbourne plant; and

(e) the respondent failed to comply with cl 9 of the Agreement and consult Mr Scott as to its intention to make his position redundant prior to 7 August 2018.

[51] Mr Trotman put that the fact Mr Scott was paid redundancy payments is irrelevant to a Court’s finding of adverse action. A Court would consider Mr and Mrs Scott’s evidence as to his lengthy service, and his desire to work for Steritech until retirement, when assessing the loss caused by his dismissal in contravention of the Act. The Court might also order pecuniary penalties, unrelated to any redundancy payments.

These factors would weigh in favour of granting an extension of time on its prima facie merits.

[52] It was further submitted that Mr Scott’s circumstances were unique, in that he had 15 years 4 months’ service and was purportedly made redundant, without warning and suffered mental illness as a consequence (s 366(2)(e)).

[53] Mr Trotman put that the Commission would be satisfied that ‘exceptional circumstances’ had been established, such as to warrant an extension of time to file this application being granted.

For Steritech

[54] After setting out the factual background and statutory provisions relevant to this matter, Mr Rinkevich noted that Mr Scott claimed he was ‘shocked and traumatised’ and suffering from ‘severe depression’, and this combined with representative error, constitutes ‘exceptional circumstances’. However, Mr Rinkevich submitted that Mr Scott presented no medical evidence that he was incapable of filing an application himself, or provide instructions to his legal representative to do so. The notes of doctors’ appointments on 16, 19 and 23 August 2018, do not establish he was shocked and traumatised, unable to make an application, or have his representative do so on his behalf; see: Neven v Aurizon Operations Limited [2016] FWCFC 5497 (‘Neven’); Cassidy v Independent Pub Group [2017] FWC 4183 (‘Cassidy’) and Miller v Allianz Insurance Australia Ltd t/a Allianz [2016] FWCFB 5472 (‘Miller’).

[55] Mr Rinkevich addressed each of criteria in s 366(2) as follows:

Reason for the delay

[56] By reliance on Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 and Miller, Mr Rinkevich submitted that the evidence contradicts Mr Scott’s reasons for the delay being his severe depression. Rather, Mr Scott was able to:

(a) contact the Respondent on 8 August 2018 to ask if anyone else had been made redundant;

(b) lodge a workers’ compensation claim via an on-line portal on 20 August 2018;

(c) notify the Respondent of his workers’ compensation claim on 20 August 2018 and provide the Respondent with a workers’ compensation medical certificate;

(d) provide his statement of events to Workcover verbally on 23 August 2018;

(e) contact, or meet with, legal representatives on 15, 27, 28 and 29 August 2018, and provide instructions on 29 August 2018.

[57] Mr Rinkevich said these circumstances were almost identical to those in Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (‘Ballarat Truck’), in which a Full Bench of the Commission found that an applicant was quite capable of acting in her own capacity and could engage in formal dealings relating to her dismissal.

[58] Mr Rinkevich set out the chronology of events in which Mr Scott contacted and dealt with Mr Trotman, and noted there was no discussion between them about a GP claim until 29 August 2018, which was already outside the 21 day limit.

[59] By reference to Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1 and Clark v Ringwood Hospital (1997) 74 IR 326, Mr Rinkevich submitted that:

(a) representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;

(b) the conduct of Mr Scott is a central consideration in deciding whether representative error provides an explanation for the delay in filing the application; and

(c) error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[60] It was the respondent’s submission that on the accepted facts, representative error only accounted for one day of the delay and would not constitute ‘exceptional circumstances’, when all of the circumstances from 7 August 2018 were considered. This weighs against the granting of an extension of time.

Any action to dispute the dismissal

Mr Rinkevich accepted that Mr Scott attended an appointment with Shine Lawyers on 15 August 2018 and had contact with Mr Trotman on 27, 28 and 29 August 2018. However, Mr Scott himself accepted he did not feel like taking the matter further after talking to a lawyer. His actions were not strenuously pursued. This is a neutral factor.

Prejudice to the employer

[61] The respondent conceded it would suffer no prejudice by the two day delay in filing the GP application. This was a neutral factor.

Merits of the application

[62] Mr Rinkevich submitted that the respondent will be able to rebut the reverse onus of proof as to the alleged reason for dismissal, being Mr Scott’s illness and absences. This must be so because despite a lengthy period of illness and absence, Steritech (Mr Robertson and Ms Morrison in particular), had always sought to accommodate Mr Scott’s illness to ensure his safety at work, including allowing him to access his annual and long service leave accruals. This is consistent with the genuine nature of Mr Scott’s redundancy. Further, as Mr Scott was not covered by the workplace agreement, there was no obligation to comply with the consultation provisions contained therein. The merit criterion weighs against the granting of an extension of time.

Fairness between other employees in a like position

[63] In dealing with the cases in which a lack of medical evidence to demonstrate incapacity of an applicant to file in time, which do not support an extension of time, Mr Rinkevich submitted that this case was no different. Accordingly, no unfairness between persons in a like position, arises. This weighs against the granting of an extension of time.

[64] Finally, the respondent submitted that:

•  Mr Scott had failed to discharge the onus of proving that exceptional circumstances exist to enable the Commission to exercise its discretion under section 366(1)(b) of the Act;

•  the Commission cannot be satisfied on the evidence before it that the test of ‘exceptional circumstances’, which established a high hurdle for an application for an extension of time, has been met;

•  there being no ‘exceptional circumstances’ present, the Commission should not exercise its discretion in favour of granting an extension of time to Mr Scott; and

•  the application should be dismissed.

[65] In oral submissions, Mr Miller said the starting point was that Mr Scott was fit and healthy on 7 August 2018. Because Dr Slack did not see him until 23 November 2018 - over 3 months later - at best, he could only have surmised what had happened earlier. In any event, there was no medical evidence that Mr Scott could not lodge his application in time. Further, Mr Miller said that despite seeing Dr Ikramova on three occasions, her notes make no reference to what Mr Scott now says, being that he was so depressed as he was self-harming, or there was an emergency, requiring hospitalisation. The Commission would not accept he hid what he was doing from his wife, at the very least not until September 2018. Mr Miller also relied on what Mr Scott was doing during this time; see [56] above. Mr Miller noted that when Mr Scott formed the impression there was nothing that could be done, he decided not to take the matter further. It took him another couple of weeks before he first spoke to Mr Trotman.

[66] Mr Miller rejected Mr Scott’s claim that he was not aware of the details of workers’ compensation claims. This was totally inconceivable, given he had lodged four previous workers’ compensation claims. It would be accepted that he had cooperated with Dr Ikramova in preparing a workers’ compensation claim on 16 August 2018.

[67] Mr Miller submitted that Mr Scott had contributed to Mr Trotman’s error in not contacting him until 27 August 2018. He could have instructed Mr Trotman on 26, 27 or 28 August 2018 to file a GP claim and there was no suggestion he could not do so, or had no capacity to do so. Mr Scott now seeks to back away from his earlier statement that his conversation with Mr Trotman was perfectly reasonable and coherent.

[68] Mr Miller submitted that Mr Scott was not blameless. He ‘sat on his rights’ for 20 days. His mental state did not prevent him from filing an application, or instructing his representative to do so. Mr Miller accepted that Mr Scott was upset by his redundancy, and in questions from me, acknowledged he had long service and had been dismissed without notice, or consultation. However, Mr Miller said that this was ameliorated by his significant redundancy package.

[69] In reply, Mr Trotman relied on the decisions in Neven and Cassidy, to support the proposition that should medical evidence be relied on to explain the reason for delay, such evidence must explain how the condition prevented or impacted upon the applicant’s ability to:

(a) make the application within the 21 day statutory period; or

(b) instruct a representative to lodge an application within the 21 day statutory period.

[70] The evidence relied on was set out in Mr Scott’s statements and the annexed medical and hospital reports. This was corroborated by the medical opinion of Dr Slack, in which he concluded that Mr Scott had suffered a major depressive episode of severe intensity affecting cognitive functioning.

[71] Mr Trotman submitted that there was relevant and credible evidence which explains the entirety of the delay from 8 to 30 August 2018, noting that there is no requirement to provide an explanation for the entire period; see: Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (‘Stogiannidis’) and Ballarat Truck in which the facts considered there were similar to this case. Mr Trotman said that although Mr Scott had sought legal advice, seen Dr Ikramova and filed a workers’ compensation claim during this period, the respondent ‘overstated’ these events, without taking into account Mr Scott was impaired throughout the period.

[72] Mr Trotman submitted that Mr Scott no longer pressed ‘representative error’ as part of the explanation for the delay. However, he did rely on the events during 27 August to 30 August 2018, as providing a credible explanation for the delay.

[73] As to any action taken by Mr Scott to dispute his dismissal, these steps were not disputed and should weigh in favour of granting an extension of time.

[74] As to the merits, Mr Trotman did not accept that the facts in Miller are sufficiently similar to the facts here. The fact the respondent allowed Mr Scott to access his entitlements when his personal leave was exhausted, is not relevant to whether Steritech had contravened s 352 of the Act. Reliance was also had on Dutta v Telstra Corporation Limited [2018] FCA 1994. Mr Trotman submitted that the Commission would accept the uncontested evidence that:

(a) Mr Robertson said to Mr Scott repeatedly that he (Mr Robertson), believed that Mr Scott had a heart condition and that Mr Scott would sue the respondent if Mr Scott had a heart attack at work;

(b) Mr Robertson’s assistant (Ms Jones) said to Mrs Scott that Mr Robertson had googled his condition and formed a view that he was at risk of having a heart attack;

(c) Ms Jones was not willing to accept that Mr Robertson’s diagnosis was not accurate;

(d) Mr Robertson’s comment to Mr Scott that he did not want Mr Scott at Steritech because of his illness; and

(e) Mr Scott gives evidence of a meeting with David Cross on the 17th of November 2018 whilst at a wedding. Mr Cross said to Mr Scott:

“sorry for taking your job mate.”

[75] Mr Trotman put that exceptional circumstances may be established where a dismissed employee discovers post-dismissal facts which lead to a genuine belief that their redundancy was not genuine; see: Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU [2012] FWA 7681.

[76] Mr Trotman observed there was an inconsistency between what the respondent said in its F3, about compliance with its consultation obligations, with what it now claims, being that Mr Scott was not covered by the Agreement, so the employer was not obliged to consult with him. In fact, Mr Trotman put that there was no consultation. Mr Scott was summarily dismissed without warning. This was completely inconsistent with what the CEO announced in December 2017, being that no one would be losing their jobs.

[77] As to fairness between Mr Scott and others in like positions, Mr Trotman said that the intensity of Mr Scott’s mental condition meant it was unlikely other employees would have been treated the same as he was, particularly when his redundancy was not handled in an acceptable way. This factor weighs in favour of granting an extension.

[78] Mr Trotman concluded:

•  on balance, it is submitted that each of the s 366(2) factors, with the exception of 366(2)(c) which the parties accept is a neutral consideration, either individually or collectively favour the granting of the extension of time; and

•  it is submitted that the circumstances of Mr Scott’s case are out of the ordinary, unusual and special, not routinely or normally encountered.

[79] In oral submissions, Ms Moody acknowledged that Mr Trotman’s third statement was created after he had sought her views as to ‘representative error’. Mr Trotman had conceded his error; see [47] above.

[80] Counsel rejected the respondent’s submission that there was no evidence of action taken by Mr Scott in the period between 7 and 30 August 2018. She relied on Dr Slack’s letter to Mr Trotman of 6 December 2018 which stated:

‘Mr Scott was very ill with ischaemic colitis throughout 2016 and 2017. He went through phases of severe pain and there were major difficulties with establishing the diagnosis and at one stage, he lost massive amounts of weight and was fed with a gastric PEG. He survived and eventually returned to work around the end of June 2018 and in early August, was given a redundancy notice. His peremptory treatment was at the hands of a company called Steritech where he had worked for some 16 years and he had worked long hours on a regular basis and he had indeed helped the owner set up the business.

As one would expect, Michael was devastated by his dismissal. His mental state deteriorated, and he suffered a complete breakdown. He has been quite suicidal and there has been severe self-harm at times with suicide attempts. He has been admitted both to the Caboolture Hospital and latterly under my care at Pine Rivers Private Hospital.

The diagnosis is a Major Depressive Episode, severe in intensity. Fortunately, Mr Scott has responded to a combination of psychotropic medication and cognitive behavioural therapy but is still as yet unfit to return to the workplace.’

This assessment was also consistent with Dr Ikramova’s diagnosis.

[81] Ms Moody submitted it was apparent that the onset of Mr Scott’s depression was immediately after his dismissal and progressively deteriorated until his hospitalisation. The Commission would accept this in context as being relevant to the period between 7 and 30 August 2018.

[82] In her reply, Ms Moody said there was no basis to suggest Mr Scott, or his wife, were not witnesses of credit, as to the evidence concerning his self-harm attempts. It was never put to him that he was lying; or that he was lying about seeing Shine Lawyers and what he was told by them. It was wrong to submit Mr Scott was just angry about his dismissal; rather, the evidence as to his mental state, is to the contrary.

[83] Ms Moody submitted it was not unusual for a psychiatrist to express an expert opinion about the onset of a medical condition and diagnosis after the event. This is precisely what Dr Slack did.

[84] As to the respondent’s focus on who filled in the Workcover claim, Mr Scott honestly accepted that it might have been him; he just could not recall. In any event, it did not matter, because there could be no doubt he was depressed and on medication at the time.

[85] As to Mr Trotman, Ms Moody said his error was entirely understandable, on the part of a busy sole practitioner. In any event, the length of delay was very small. Ms Moody emphasised that Mr Scott was in a terrible state after being summarily dismissed. He was treated like a criminal by being told to leave the building, after more than 15 years’ service. There was no notice or consultation. It was a particularly severe reaction by the respondent.

CONSIDERATION

Statutory provisions and relevant authorities

[86] The relevant provisions of the Act in matters of this kind are found at ss 366(1) and (2), which provide:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.”

[87] Mr Scott was dismissed on 7 August 2018. His s 365 GP application was lodged on 30 August 2018. This means it is 2 days outside the 21 day time limit set out in s 366(1) of the Act.

[88] In Luke Tamu v Australia for UNHCR [2019] FWCFB 2384, a recent Full Bench of the Commission summarised the relevant principles at [16] – [20] as follows:

‘[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day. See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

“(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.”

[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. See Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].A decision whether to extend time under section 366(2) involves the exercise of a discretion: Halls v KR & MA McCardle and Ors [2014] FCCA 316.

[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) [2011] FWAFB 975as follows:

“[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 time limit in s.366(1)(a) is not an exceptional circumstance.”

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all 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: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).’

[89] It must also be stressed that a finding of ‘exceptional circumstances’ is a classic exercise of discretion, as is apparent from the inclusion of the word ‘may’ in s 366(2). The discretion is only enlivened if the Commission is satisfied there are ‘exceptional circumstances’. That test has been said to be a ‘high hurdle’ for an applicant to overcome when seeking an extension of time; see: Qantas Airways Ltd v McCrae [2017] FWCFB 4033.
However,in Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394, Lawler VP stated that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’ in that it would be sufficient for an applicant to meet the relatively high hurdle of ‘exceptional circumstances’ where one, or more, or in combination, of the criteria in s 366(2) establishes circumstances which are ‘unusual, out of the ordinary, special or uncommon.’

[90] More recently, in Stogiannidis a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 which had concluded that in order for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay in filing. Until recently, this approach had been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [38]-[40]:

‘[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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

See also Cannon v Quad Services [2019] FWCFB 2097.

[91] I turn now to each of the matters the Commission is required to take into account to be satisfied whether Mr Scott has established ‘exceptional circumstances’ for the late lodgement of this application.

Reasons for delay (s 366(2)(a))

[92] In essence, there are two reasons advanced by Mr Scott as to the reasons for delay:

•  his severe depression following his dismissal; and

•  ‘representative error’.

[93] As to Mr Scott’s medical/psychological condition, it is not ‘out of the ordinary’ or ‘unusual’ for a dismissal employee to experience some degree of anxiety, stress, withdrawal from social and normal human activities and helplessness. Sometimes this manifests itself in depression of such severity that medication, or regrettably even hospitalisation, may be necessary.

[94] There is no dispute that Mr Scott was diagnosed with moderate to severe depression, he consulted Dr Ikramova on 16 August, 19 August and 23 August and was also treated by Dr Slack and Dr Keys. He was hospitalised for his condition; the first occasion for almost a month from 14 September 2018.

[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period.

[96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal.

[97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.

[98] That representative error may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act (the unfair dismissal provisions), has been considered and accepted by the Commission and its predecessors in numerous cases on the subject. In Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 (‘Robinson v Interstate’), a Full Bench helpfully set out this history at [24] to [25] as follows:

‘[24]The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark v Ringwood Private Hospital (1997) 74 IR 413 (‘Clark’s Case) in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case Print Q0784 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act; McConnell v A & PM Fornataro t/a Tony's Plumbing Service[2011] FWAFB 466, at para [35]. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

‘In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.’’

[99] Despite Mr Trotman’s confusing submissions as to the extent of his culpability and his unclear explanations for not filing the GP application within time, I am satisfied that this was a manifest case of representative error, for which Mr Scott is entirely blameless.

[100] Although it is irrelevant whether or not I accept Mr Trotman’s explanations about being too busy or overworked, or having forgotten about the 21 day time period, Mr Scott was entitled to expect competent and correct advice from a lawyer practicing in employment matters, particularly given his medical condition. I do not accept Mr Trotman’s excuses as him being too busy and having to start work at 4am, or that he did not know Mr Scott’s dismissal date until 28 August 2018. As I warned in the proceeding, I will be frank. If Mr Trotman cannot properly advise a client about a simple matter, such as a time limit on common employment related applications, bearing in mind it is 21 days for either an unfair dismissal or GP application, then perhaps he should not take on so many clients, hire another lawyer or refer his overflow to another Firm. His dilatory conduct at the time was simply not good enough.

[101] Accordingly, I am satisfied that representative error was a significant factor in this case which falls in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.

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

[102] There is no doubt that Mr Scott was aggrieved about his dismissal, and while encouraged by his wife, he made an appointment with a lawyer on 15 August 2018 and made contact with Mr Trotman on 27 August 2018. This does not demonstrate a ‘laissez-faire’ or tardy, slack approach to his dismissal. This factor falls in favour of granting an extension of time.

Prejudice to the employer (s 366(2)(c))

[103] The parties are ad idem as to there being no prejudice to the respondent by the application being accepted two days late. I agree this is a neutral factor in the matter.

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

[104] In considering the merits of the substantive application, the Commission is not in a position to make findings of fact on contested issues. This is particularly so in GP applications involving a dismissal, where apart from the rarely used consent arbitration powers of the Commission in s 369, the Commission’s only function under Part 3-1 is to convene a conference and, in the event of unsuccessful conciliation, issue a s 368 Certificate to that effect. This crucial step triggers the capacity of the applicant to pursue his/her case in the Federal Circuit Court of Australia or the Federal Court of Australia. That said, I refer to the observation of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). 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 pursuant to s.170CE(8). 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. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[105] In Kornicki, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said:

‘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 merits of the substantive application for relief in the context of an extension or 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.’ (my emphasis)

[106] Unlike most of the applications of this kind, I have had the benefit of statement and oral evidence which traversed, in a preliminary way, the opposing views of the parties as to the reasons for Mr Scott’s dismissal. I am satisfied that it is not apparent from the evidence at this time, that Mr Scott’s belief as to the real reason for his dismissal is misconceived. If this is ultimately found to be so, his claim of breaches of the GP provisions of the Act, may well succeed. In any event, I am comfortably satisfied that Mr Scott’s GP application is not without merit. This factor tells in favour of granting an extension of time.

Fairness between other persons in a like position (s 366(2)(e))

[107] In Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

‘Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the important of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

In my view, Mr Trotman’s submission that Mr Scott’s circumstances were unique was compelling, particularly given my conclusions as to Mr Scott’s uncommon post dismissal experience, as to the psychological affects the dismissal had on him. Nevertheless, this is a neutral factor.

CONCLUSION

[108] Taking into account all of the matters in s 366(2)(a)-(e) of the Act and in considering all of the relevant circumstances established by the uncontested evidence, I am satisfied that when viewed collectively, the reasons for the delay in filing the application within time, were ‘exceptional circumstances’, within the meaning of s 366(2)(a) of the Act. The other factors in ss (2)(b)-(e) are either neutral, or tell in favour of granting an extension of time.

[109] Accordingly, the Commission’s jurisdiction is enlivened and I propose to order that the time for Mr Scott’s GP application to be lodged, be extended to 30 August 2018.

[110] The application will be referred to the Practice Leader for General Protections matters for allocation to a Member for conciliation, pursuant to s 368 of the Act.

DEPUTY PRESIDENT

Appearances:

Ms S Moody of Counsel with Mr H Trotman, Solicitor, Queensland Workplace Law for the applicant.

Mr D Miller, Solicitor, Ai Group and Mr S Rinkevich, Solicitor, Ai Group, for the respondent.

Hearing details:

2019

Sydney; videolink to Brisbane:

February 14

Printed by authority of the Commonwealth Government Printer

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