Timothy Taylor v Eagers Automotive Limited
[2024] FWC 550
•1 MARCH 2024
| [2024] FWC 550 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Taylor
v
Eagers Automotive Limited
(U2024/596)
| COMMISSIONER P RYAN | SYDNEY, 1 MARCH 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Timothy Taylor (Taylor/Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) made on 17 January 2024 (Application).
In the Application, the Applicant states that his employment with Eagers Automotive Limited (Respondent) commenced on 23 August 2021 and was terminated with effect from 6 December 2023.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). If the Applicant’s dismissal took effect from 6 December 2023, the Application is 21 days outside the 21-day period. The Applicant requests the Fair Work Commission (Commission) to allow a further period for the Application to be made under s.394(3).
Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 19 January 2024 advising that the Application appeared to have been made out of time and inviting the Applicant to provide any preliminary submissions. On 24 January 2024, the Applicant filed a preliminary submission setting out an explanation for the delay in making the Application.
Following the allocation of the matter to my chambers, and in accordance with directions issued by me, both parties were provided with an opportunity to file further materials in support of, or in opposition to, the Applicant’s application for an extension of time.
On 7 February 2024, the Applicant advised my chambers that he did not intend to file any further material and would rely on the information set out in the Application and the preliminary submission dated 24 January 2024.
On 12 February 2024, the Respondent filed an outline of submissions and a witness statement of Mr Troy Chelsom.
The matter proceeded as a hearing[1] via Microsoft Teams on 22 February 2024. The Applicant was self-represented. The Respondent was represented by Ms A Comer, People and Safety Partner, and Ms S Tarman, People and Safety Manager.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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 can be considered exceptional.[3]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[4]
I now consider these matters in the context of the application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[5]
The Applicant submitted there were two reasons for the delay:
·That he was not sure if he had a legitimate claim for an unfair dismissal remedy and needed to seek legal advice; and
·That he was not mentally capable of making the Application earlier.
Seeking Legal Advice
The Applicant submitted that he was not sure if he had a legitimate claim for an unfair dismissal remedy and that he needed to seek legal advice. In his preliminary submission, the Applicant stated that he “tried contacting multiple legal representatives to get a consult but due to [his] current financial situation it was not something [he] could afford.” The Applicant further stated that when he “found [legal representatives] that were no win no pay unfortunately, they were closed for the holiday period between Christmas and New Year”.
The Applicant stated that while he became aware of the 21 day time limit approximately 14 days after his dismissal took effect, it was not until the morning of 17 January 2024 that he received limited assistance from an employment law firm. The Applicant then lodged the Application later that day.
Delaying the making of an application for an unfair dismissal remedy whilst seeking, or waiting for legal advice, is not an acceptable or reasonable explanation.[6] As stated in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission. (Emphasis added)
The Commission’s website has a range of resources to assist self-represented litigants and there is no reason why the Applicant could not have made the Application and continued to seek legal advice.
I also do not accept that the Applicant’s lack of awareness of the 21 day time limit or the intervention of the Christmas/New Year Period, to the extent that those matters contributed to the delay, are acceptable or reasonable explanations.
It is well established that a lack of knowledge or ignorance of the applicable time limit and the intervention of the Christmas/New Year Period are not acceptable explanations weighing in favour of a conclusion that there are exceptional circumstances.[7]
Medical/Mental Incapacity
In Victor Blanco v White Bathroom[8] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] 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 to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] 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.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that 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 without proper and specific medical evidence.
[51] 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, Beard 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 Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).[Footnotes omitted]
I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition or incapacity is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.[9]
The Applicant stated that following his dismissal he “was not in a great place mentally” and while he accepted that information about the 21 day time limit was readily available, he stated that he was not mentally capable of proceeding with an application against the Respondent.
Notwithstanding the Applicant’s submission regarding his capacity, in the period following his dismissal the Applicant attended a job interview on 7 December 2023, visited the Respondent’s premises on two occasions to collect personal items, contacted multiple legal representatives, went on a holiday in late December 2023, commenced new employment on 2 January 2024, and worked every weekday from 2-17 January 2024.
While the Applicant submitted that he was not mentally capable of making the Application earlier than 17 January 2024, he did not adduce any medical evidence demonstrating incapacity such as to prevent the lodging of the Application within the 21 day period.
In the absence of medical evidence demonstrating incapacity such to prevent the lodging of the Application and taking into consideration the day-to-day activities the Applicant engaged in following his dismissal, I do not accept medical or mental incapacity is an acceptable or reasonable explanation for the delay.
Reason for the delay - Conclusion
For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[10]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[11]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the Application on 17 January 2024. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[12] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
T Taylor, Applicant.
A Comer with S Tarman, for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
22 February.
[1] See s.397 and s.399 of the FW Act.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [59]-[63]; Jaegar v Traffic Diversions Group[2016] FWC 1231 (Jaegar) at [14]-[15], [27]-[28].
[7] Nulty at [14]; Jaegar at [14], [26]; Smith v KJM Contractors Pty Ltd[2010] FWA 5515 at [45]-[46].
[8] [2021] FWC 4694 at [44]-[51].
[9] See also Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28]; Manoj Ellikuttige v Moonee Valley Racing Club Inc.[2018] FWCFB 4988 at [29]-[31]; Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37]-[38].
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[12] See paragraph [14] above.
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