Vance Joyce v Suncorp Staff Pty Ltd

[2017] FWC 2710

[2017] FWC 2710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vance Joyce
v
Suncorp Staff Pty Ltd
(U2017/561)

DEPUTY PRESIDENT DEAN SYDNEY, 22 MAY 2017

Application for an unfair dismissal remedy –extension of time.

[1] Mr Joyce was employed by Suncorp Staff Pty Ltd (Suncorp) until he was notified of his dismissal on 20 December 2016, with immediate effect.

[2] On or about 16 January 2017 Mr Joyce posted an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). His application, received by the Commission on 19 January, was made nine days outside the 21 day period prescribed by s.394(2) of the Act. Suncorp objected to the application and the matter was listed for hearing by telephone on 19 May 2017 to determine whether to grant Mr Joyce an extension of time. At the hearing, Mr Joyce appeared on his own behalf. Ms C Jenkins, an in-house Employee Relations Specialist, appeared for Suncorp. Suncorp made an application under s.596(2) of the Act on 11 May 2017 for permission to be represented. Permission was refused on the basis that I was not satisfied that the requirements of s.596(2) were met.

[3] Section 394(3) of the Act provides:

(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.

[4] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[6] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[7] In his application, Mr Joyce states the reason for the delay as follows:

“I have recently applied for Newstart Allowance through Centrelink because of Suncorp’s letter of termination. Prior to the letter, I had been on Sickness allowance through Centrelink for several months. I have not been able to work since 1st April 2015 due to succumbing to a psychological injury (which I am medicated for) due to an incident within my workplace. The injury resulting from the workplace is at the centre of what is to date a nearly 2-year struggle through the WorkCover Queensland labyrinth and a large financial corporate entity. The timing of the termination letter so close to the holiday period has made the transition of moving from one payment to a new payment within Centrelink most difficult with me jumping through hoops and attending meetings/calls to prevent me from losing my entitlements. During the Christmas period my family have focused on my terminally ill uncle who was expected to pass away prior to Christmas but has been fortunate to see in the new year. I contacted my Union Advocates regarding the letter but was informed via email that the FSU felt I ‘do not have a case for unfair dismissal’ which I do not agree as the FSU do not have all the relevant facts at hand. Again, given the cynical timing of the apparent immediate termination (3 days before the Christmas weekend) has made it extremely difficult to seek guidance in making this application as expectedly, may work places closed or staff and hours greatly reduced during the holiday period. When I was finally recently able to obtain some legal advice, I was informed I have only 21 days to present my case from the date of dismissal. I was trying to apply on line during the past weekend but did not realise I was looking at the Fair Work Ombudsman web site in error. I am doing this on my own am struggling with depression and anxiety which makes it mostly very difficult.”

[8] In his written submission provided on 13 March 2017, Mr Joyce made the following submissions in relation to his health condition:

• At the time of his immediate termination he was on leave without pay due to a psychological illness including but not limited to anxiety, depression, work related stress. He had exhausted all of his leave entitlements at an earlier time.



• The psychological illness is the ‘consequence of the adverse actions and discrimination by leaders at the Suncorp Group workplace punctuated through the entirety of my period of employment and further exacerbated by contact, adverse actions and discrimination by the Suncorp Group while I have been too unwell to work.’



• As a result of contact with two of his immediate leaders on 20 June 2016 in an unsuccessful attempt to retrieve his prescription glasses from the workplace, he was admitted to the Townsville Hospital Adult Acute Mental Health Inpatient Unit during the early hours of the following morning.



• He has maintained a sequence of medical certificates which he has forwarded to his various direct leaders as nominated by the Suncorp Group from time to time. At the time of the dismissal, he was in possession of a current medical certificate from his GP stating he was ‘unfit for work from Thursday, 24 November 2016 to Friday 27 January 2017 inclusive’.

[9] Mr Joyce further submits the following explanations for the delay:

• Some of the symptoms of his acquired depression and anxiety through work stress including but not limited to poor concentration, poor memory, panic attacks, makes it very difficult to start, maintain and complete tasks such as an application to the Fair Work Commission. In Ovenden v Fortezza Pty Ltd T/A High country Automotive Group 2 (Ovenden), the application was submitted 26 days outside the timeframe with the employee suffering from depression and anxiety exacerbated by work stress and the Commission found this as exceptional circumstances for approving an extension of time.



• ‘While initially searching the internet to seek out what to do about the unfair dismissal of me by the Suncorp Group, I came across information stating the acceptable time for submitting an application was ’14 days’ only. At this point I was just beyond the 14 days and thought I was already too late to begin an application. About a week later while seeking legal information on a related matter I was correctly informed the application period is 21 days and I began to try and submit an application via the Fair work Commission website.’

• ‘Unfortunately I twice tried to complete and submit the application online but both times for some reason unknown to me the application seemed to ‘freeze’ on a page well into the process. Although maintaining the pages open on the computer through the night in the hopes the applications may ‘unfreeze’, the applications remained fixed and I had to delete the individual applications each time. This made me low, dejected and anxious at the time causing each application to take me roughly 3 days each. Finally on the third attempt I was able to complete the application but now felt it more prudent to print the document and post the application in the Australia Post mailbox to be delivered to the Fair Work Commission. Posting the application further delayed the arrival of the application a few days.’

• In Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery 3 (Johnson), the appicant encountered technical issues while trying to lodge the application via the Fair Work website was seen as exceptional circumstances in granting the extension of time when the application was received 4 days outside the timeframe.

[10] At the hearing, Mr Joyce confirmed the matters set out in his written statement of 13 March 2017 and expanded on some aspects of his statement.

[11] Suncorp contends that the explanations submitted by Mr Joyce fail to demonstrate that they are circumstances that can be considered as ‘exceptional’. Suncorp’s submissions are extensive and can be summarised as follows:

• It is well accepted that an applicant needs to provide a credible reason for the whole of the period that the application was delayed. 4



• The medical certificate provided by Mr Joyce provides that he was unfit for work from 24 November 2016 until 27 January 2017. He has not provided sufficient evidence demonstrating his mental incapacity to explain his delay.



• While the medical certificate states that Mr Joyce was unfit for work up until 27 January 2017, he was still able to finalise and post his application on 17 January 2017, during the period which his medical certificate covered. If Mr Joyce was well and able enough to file his application during a time when he was deemed to be unfit for work, he could have submitted the application during the requisite timeframe. Mr Joyce has not provided any evidence to suggest that he was permanently incapacitated during the relevant period.



• The Commission, and its predecessor, have previously been required to examine circumstances of personal stress and anxiety and on numerous occasions has rejected the notion that heightened stress or anxiety levels following an employee’s dismissal constitute an ‘exceptional circumstance’.



• In Wemyss v Mission Australia Employment Services 5, it was held that in order for health problems to constitute an acceptable reason for a delay in filing an unfair dismissal application, evidence must be led demonstrating that the debilitating nature of the health problems acted as an impediment to lodgement of a claim for unfair dismissal.”



• In Rose v BMD Constructions Pty Ltd 6, the applicant submitted that an extension of time should be granted because she was suffering from shock and trauma as a result of her dismissal. Commissioner Roe rejected the applicant’s argument and in doing so stated: ‘The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following the dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16 December 2010 stating that “Susan Rose tells me she was dismissed from her job in September 2010 and has reported to me this has produced anxiety/depression.” This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.’



• In Shaw v Australia and New Zealand Banking Group Limited 7, the Full Bench upheld Deputy President Gostencnik’s decision at first instance that any heightened level of stress and anxiety is invariably experienced by dismissed employees, making such a circumstance not exceptional. While the Full Bench noted that the loss of employment is a serious event in a person’s life, such effects are ‘unfortunately not unusual’.

• The decision of Ovenden relied upon by Mr Joyce can be distinguished from the present facts, because in that decision the applicant provided a medical certificate which stated that he was unfit for work from 2 December 2009 to 8 January 2010, as well as providing a psychologist’s letter stating that the applicant was unable to deal with the notice of termination letter and was showing signs of Post-Traumatic Stress Disorder and suffering from an intellectual impairment.

• The present circumstances can be distinguished from the decision of Anesha Mohanan v China Southern Airlines 8where the applicant in that case had provided a detailed witness statement setting out her medical circumstances associated with life-threatening ovarian cancer and annexed various medical reports in relation to her illness and psychological condition. In the current situation, Mr Joyce has provided limited evidence in relation to his medical condition and has not provided any additional evidence to the effect that he was ‘unable’ to deal with the termination.

• The explanation for the delay, being that Mr Joyce had been focused on his terminally ill uncle, although unfortunate, is not ‘exceptional’.

• In McKenzie v Kartaway (Qld) Pty Ltd 9, the Commission found that despite evidence from the applicant that reasons for the delay included, among other things, caring for his 17 year old son who sustained an injury to his spine and travelling to Perth to attend his stepmother’s funeral, these reasons did not explain the entire period of the applicant’s delay, and therefore did not justify an extension of time.

• In Ebbott v FMSA 10, it was held that the fact the applicant: (i) was distressed after being bullied at work; (ii) was supporting his partner through a high-risk pregnancy and associated cervical cancer; and (iii) was dealing with the death of his grandmother; although upsetting, did not constitute exceptional circumstances justifying an extension of time.



• In Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers 11, the Full Bench found the applicant had provided no credible reason for the delay, when an unfair dismissal application was lodged five weeks late due to physical dislocation and exigencies associated with the applicant’s carer’s responsibilities concerning the hospitalisation of the applicant’s 91 year old mother.

• While Mr Joyce has provided a print out of the form referring to the 14 day time limit, he has not provided any information relating to his search function or terms. In any search function relating to unfair dismissal (including variations of these words), the first internet pages to return results are the Fair Work Commission and Fair Work Ombudsman websites. Both of these websites clearly state that the time period for an application is 21 days from dismissal. Additionally, the cover of the Form F2 Unfair Dismissal Application Form clearly states that the timeframe to lodge a claim is 21 days. Mr Joyce had multiple sources of credible information available to him, however now purports to rely on outdated information in support of his request for an extension.

• Mr Joyce sought the advice of the Financial Services Union and could have confirmed the correct timeframe for lodging an application from the Financial Services Union. Further, since at least 29 August 2016, Mr Joyce also had his solicitor available to him (noting that a solicitor assisted him with his refusal to attend a medical assessment with the Respondent). Mr Joyce’s solicitor was also emailed a copy of his letter of termination. Mr Joyce could have, at the time he was dismissed or in the days thereafter, asked his solicitor for confirmation of the timeframe to lodge an unfair dismissal application.

• In his own admission, Mr Joyce read the information ‘just beyond the 14 days’ but before the 21 day timeframe had ended but did not immediately begin to prepare an application. In particular, Mr Joyce has not provided any evidence as to why he failed to take any steps within the week immediately preceding the 21 day period to progress any form of application disputing his dismissal. Further, Mr Joyce did not take any steps to contact the Commission to confirm the relevant timeframe, despite the information brief including the correct telephone number for the Commission.

• The failure to lodge the application online resulting the application being posted by mail is not an exceptional circumstance. There are multiple alternative means available to him including making a telephone application with the Commission, printing and completing the application by hand once he became aware that the online application was not working; or locally saving the application and emailing or faxing the completed form to the Commission. The Applicant has also not provided any evidence of him calling the Commission to discuss his inability to complete the online application.

• When posting the application, Mr Joyce did not use Australia Post’s express post service. In Porscha Juwa v Blue Cross Animals Society of Victoria 12, the Commission found that the employee should have been aware that a letter posted from rural Victoria was unlikely to reach the Commission on time. The employee acknowledged that not sending her application by express post was poor judgment. In this decision, an extension was not granted.

• The decision of Johnson relied upon by Mr Joyce should be distinguished on the basis that in that decision, the applicant made an attempt to submit the online application prior to the time limit expiring and posted his application within the time limit, despite Fair Work Australia (as it then was) not receiving the application until 4 days after the time limit had elapsed. This is contrary to the Applicant’s situation, where it is clear that the Applicant did not begin preparing an online application until after the expiry of the 21 time limit.

• As to Mr Joyce’s explanation that he was unable to complete the application in time because he was required to change his Centrelink Sickness Allowance to a Centrelink NewStart Allowance and needed to attend meetings/calls to prevent him from losing his entitlements’, Mr Joyce has provided no details as to the number of times he was required to meet with and call Centrelink to change this payment over, nor how this otherwise impacted on his ability to complete the Application within the relevant timeframe. This is not an ‘exceptional’ circumstance given that many dismissed employees would also be required to notify Centrelink as to their change in circumstances.



• Mr Joyce’s explanation that he could not obtain legal advice or seek guidance in making the application due to the closure or reduced hours of law firms over the Christmas period does not constitute sufficient reason for the delay in filing the application and these circumstances are not exceptional. In Smith v KJM Contractors Pty Ltd 13, Fair Work Australia was required to determine whether the Christmas period was an exceptional reason for the delay in an unfair dismissal application and held that: ‘Despite the fact that difficulties may arise in relation to the Christmas period, the Christmas public holidays are a known event on the calendar. They do not represent an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of an application. They are predictable and known events on the calendar, much as any other holiday period, in fact if not more notorious than that. … It appears to me that the Fair Work Act 2009 places an obligation on employees to make an application aware of, or being cognisant of, the 14 day calendar period, irrespective of intervening public holidays or weekends, which may of course affect access to professional advice, as well as generating other circumstances.’

• Mr Joyce’s solicitor has also been provided a copy of the termination letter by Suncorp and Mr Joyce could have sought guidance from his solicitor (or another solicitor at the same firm) immediately after receiving his termination letter.

• Mr Joyce’s reliance on the FSU’s advice does not form a credible reason to explain the delay. Mr Joyce alone is the person who was responsible for ensuring that the FSU had all of the relevant information at hand to provide him with advice. There is no evidence to illustrate that clear instructions were not provided to the FSU or when in fact Mr Joyce sought the FSU’s advice.

[12] Suncorp made further oral submissions during the hearing which reinforced its comprehensive written submissions.

Consideration of reasons for delay

[13] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 14. That consideration does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for a delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances15. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic16, the Full Bench explained the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[14] Mr Joyce contended that his health condition was a factor warranting an extension of time. However, the medical evidence submitted by Mr Joyce only confirmed that he was unfit to attend work and does not support a conclusion that his health was impacted to such an extent that he was incapable of filing the application within the required timeframe.

[15] In addition, it was Mr Joyce’s evidence that he was able to seek advice from the FSU immediately after his dismissal. He also gave evidence that he met with his lawyer (regarding his workers compensation claim), he travelled to Brisbane to attend a medical appointment located in the same building as the Fair Work Commission, and that he engaged on a number of occasions with Centrelink regarding his payments. Mr Joyce’s ability to undertake these activities leads me to a conclusion, and I so find, that Mr Joyce was not incapacitated to an extent where he could not lodge his application within the required timeframe.

[16] Mr Joyce also relied on his focus on his terminally ill uncle as part of his reasons for the delay. I agree with Suncorp’s submissions that while unfortunate, this does not constitute exceptional circumstances.

[17] In relation to Mr Joyce’s reason for the delay caused by misinformation about the timeframe and inability to obtain advice, I accept Mr Joyce’s evidence that did speak with his union very shortly after his dismissal, who he says advised him that he ‘did not have a case’. He also spoke with this workers compensation lawyer around 14 days after his dismissal who advised him that he had 21 days to lodge his application. I find that Mr Joyce was aware of the timeframe prior to the 21 day time period elapsing.

[18] Mr Joyce also gave evidence that he had computer difficulties and was unable to lodge his application online, so after attempts to lodge electronically over a period of a few days, he printed and posted his application by ordinary mail. While computer difficulties may have occurred, Mr Joyce did not in my view take all necessary steps available to him to lodge his application after experiencing these difficulties. This could have included lodgement by telephone or posting his application by express post.

[19] Having considered all of the evidence and submissions of Mr Joyce, I find that the matters addressed by him (individually or collectively) cannot be considered ‘exceptional’. This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[20] There is no dispute that Mr Joyce was advised of his dismissal by the letter of 20 December 2017. I find that this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[21] There is nothing to suggest that Mr Joyce took any action to dispute his dismissal until the present application was lodged. I find that this weighs against the granting of an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

[22] Mr Joyce refers to the decision of Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society 17 (Carfoot) in which it was concluded that any prejudice caused due to the short delay of 5 days was found to be minimal and thus not a reason to deny the granting of the extension.

[23] Suncorp submits that it was not on notice that the matter would be contested in future and that it would suffer the usual prejudice that accompanies any grant of an extension of time, in that employers are entitled to the certainty provided by a statutory timeframe. It further submits that it has a right to rely upon the time limits set under the Act and that the granting of the extension of time would be prejudicial to it as further costs would be incurred in defending the matter.

[24] Suncorp argues that the circumstances in Carfoot do not apply to Mr Joyce and should be distinguished.

[25] I am not persuaded that granting an extension of time in this case would result in any prejudice to Suncorp, and I so find. A lack of prejudice is an insufficient basis alone to grant an extension of time, however it weighs in favour of a finding to extend time.

The merits of the application

[26] For the purpose of determining whether to grant an extension of time for Mr Joyce to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’¹⁸

[27] The material before me on the merits of the application is limited. Clearly, Mr Joyce considers that he has been unfairly dismissed, primarily because he had provided medical certificates covering his absence. On the other hand, Suncorp says that Mr Joyce had not worked since 1 April 2015, he had not provided medical information sought by Suncorp (including failing to attend medical appointments scheduled by Suncorp), and had not responded to a request to ‘show cause’ as to why his employment should not be terminated after Suncorp formed the view that his absence from work was not temporary.

[28] On the material before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 19 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’20

[30] I do not consider that there are other relevant persons in a similar position to Mr Browne, and I therefore find it to be a neutral consideration.

Conclusion

[31] Having considered all of the matters to which my attention is directed by the Act, together with submissions from the parties, I find that there are no exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of Mr Joyce are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application is dismissed.

[32] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

V Joyce on his own behalf.

C Jenkins for Suncorp Staff Pty Ltd.

Hearing details:

2017.

Sydney and Brisbane (by telephone):

May 19

 1   [2011] FWAFB 975.

 2   [2010] FWA 3863.

 3   [2010] FWA 1394.

 4   [2010] FWAFB 7251.

 5   [2010] FWA 1798.

 6   [2011] FWA 673.

 7   [2015] FWCFB 287.

 8   [2015] FWC 6421.

 9   [2013] FWC 544.

 10   [2010] FWA 2177.

 11   [2010] FWAFB 7251.

 12   [2015] FWC 5476.

 13   [2010] FWA 5515.

 14   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 15   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 16   [2016] FWCFB 349 at [31].

 17   [2010] FWA 4080.

18 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 19   [2015] FWC 8885.

 20 Ibid at [29].

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