Victor Blanco v White Bathroom
[2021] FWC 4694
| [2021] FWC 4694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Victor Blanco
v
White Bathroom Co Pty. Ltd.
(U2021/4856)
| Deputy President Easton | SYDNEY, 26 JULY 2021 |
Unfair dismissal application filed out of time – unfair dismissal application filed out of time –mental health – circumstances not exceptional – application dismissed.
The Applicant’s employment with White Bathroom Co. Pty Ltd (“the Respondent”) ceased on or about 15 February 2021. There is a dispute about whether he resigned his employment or was dismissed. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires the Applicant make his application for an unfair dismissal remedy within 21 days after his dismissal took effect. Assuming he was dismissed, the Applicant was required to file by midnight on 8 March 2021. The application was not made until 3 June 2021 and therefore the Applicant requires an extension of time.
The application was filed significantly late. The Applicant’s principal argument for an extension of time relies on the debilitating effects of his anxiety disorder.
At the hearing of this matter the Applicant represented himself and Ms Sandhu, solicitor, appeared for the Respondent with the consent of the Applicant and my permission under s.596 of the Act.
The Applicant provided detailed evidence of the origins and history of his anxiety disorder and the many ways in which his disorder permeates into aspects of daily activity that most of the community probably take for granted. For example, the Applicant gave evidence that he had to get up each morning three hours before his work starting time and do breathing exercises and the like in order to prepare himself for a 10-minute car trip to his workplace. He left home one hour before start-time in case he had a panic attack during the journey.
I was impressed with the Applicant’s bravery and his raw honesty in both the written evidence he prepared and also in the way he conducted himself at the hearing of his application. I was acutely aware of the fact that the Applicant was wrestling with his anxiety levels in ‘real time’ during the hearing.
At the hearing I indicated that I was prepared to make orders prohibiting the publication of parts of the Applicant’s evidence and some parts of my reasons for decision. The Respondent helpfully consented to the making of these proposed orders.
After the hearing I undertook a further review of the authorities in this area of the law and have come to the view that in this matter confidentiality orders are unfortunately not available under the principle of open justice.
In Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385 Justice Pembroke of the Supreme Court of NSW said of the principle of open justice:
“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell; Farrelly v Farelly [1976] HCA 23; (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.
[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).
[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.
[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”
His Honour’s summary has been adopted in decisions of the Fair Work Commission: Kim Hodgkins [2019] FWC 3344 at [34], Mrs Loredana Pastor [2019] FWC 257 at [45], Reguero-Puente v City of Rockingham[2018] FWC 3148 and [21, 26] and Application by Mac (2015) 247 IR 274, [2015] FWC 774 at [6]-[8]. In Jaffarie v Director-General of Security[1], Justices Flick, Perram and White made similar observations regarding the importance of public scrutiny.
The Applicant submitted that his severe anxiety has been “a very private matter” and I can readily assume this to be true.
I would like make orders to keep those matters private but a proper application of the principles of open justice prevent me from doing so. As Justice Pembroke found in Warburton (at [4]), sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle is that extremely personal or confidential is disclosed in public proceedings.
These matters of open justice were not discussed at the hearing for the extension of time. Two consequences arise:
(a) In the balance of this decision I will address all of the matters I am required to address in order to properly disclose the steps involved in my reasoning (so as to afford the parties procedural fairness)[2], but I will do so in a way that avoids unnecessary recitation of the Applicant’s very private matters.
(b) The whole of this decision will be subject to a non-publication order that will apply until 4:00pm on Monday 2 August 2021. The parties have liberty to file and serve any submission they wish to make about whether the non-publication order should be extended. Any such submission must be filed by 4:00pm on Thursday 29 July 2021. If no submissions are received, the non-publication order will expire on Monday 2 August 2021 and this decision will be published on the Commission’s website in accordance with the requirements of s.601(4) of the Act.
Background
In 2019 the Applicant sought medical advice regarding his mental state following a number of very stressful family related events. He was referred to a clinical psychologist and has received medical assistance for his anxiety disorder ever since. In 2019 the Applicant resigned from his employment in Sydney, despite his former employer being very supportive, because of his anxiety and because he “didn’t feel he was doing a good job”.
Shortly thereafter the Applicant commenced work for the Respondent in Sydney. In December 2019 he suffered his first panic attack.
In early 2020 the Applicant moved to the Central Coast for financial reasons and also to improve his mental health.
In 2020 the Applicant had some physical health concerns and he consulted his general practitioner about those health concerns. He was advised by his GP that he needed to have a CTCA scan. He then faced two equally unaffordable options: he needed to have a CTCA scan however the cost of a CTCA scan is only covered by Medicare or private health insurance if the referral for the scan is made by a specialist. The out-of-pocket cost of seeing a specialist in order to get a specialist’s referral is approximately the same as paying for the CTCA scan directly. The Applicant did neither.
In December 2020 the Applicant’s GP announced that he was retiring and moving to Nowra on the NSW South Coast.
The Applicant says that on the morning of 15 February 2021 he was dismissed by the Respondent, which “was completely unexpected and came as a shock to [him]”.
On the same day the Applicant applied for 2 new jobs on the Central Coast. Later that night the applicant sent an SMS message to the Respondent in the following terms:
“Hello you two. I hope you don’t mind, but I’ve just applied for a job as an Assistant Store Manager with Beacon Lightning in Gosford and put you both down as referees. To help my application, I stated that my role at White Bathroom Co was Assistant Showroom Manager.”
On 16 February (Day 1 after the alleged dismissal) the Applicant asked for a separation certificate, payslips, and annual leave schedule, a superannuation schedule and “any other documents due at termination of employment.”
On 18 February 2021 (Day 3 after the alleged dismissal) the Applicant attended a job interview and was offered a job the day. The new job was in an industry where the Applicant had no previous experience, required long hours and late appointments and the applicant was “overwhelmed at the prospect”. The Applicant nonetheless accepted the new job. The Applicant sent a further text to the Respondent in the morning on 18 February 2021 in the following terms:
“I’ve just been to a job interview and was offered the job on the spot. I start next week and will be working Saturday to Wednesday (Thursdays and Fridays off). So I’ll be able to work at WBC this Saturday but unfortunately that will be my last day. Sorry for any inconvenience but I wasn’t expecting to be offered a job so quickly.”
In the week commencing 22 February 2021 (Days 7-14 after the alleged dismissal), the Applicant made enquiries with both the Fair Work Ombudsman (“FWO”) and the Fair Work Commission regarding unpaid wages and unfair dismissal.
The Applicant pressed on with his complaint to the FWO but did not do anything further in relation to his unfair dismissal claim at this time.
In early June 2021 FWO advised that it was unable to make a ruling, and that the Applicant should separately commence a Small Claim proceeding in the Local Court.
Over this same period from February to June 2021 the Applicant says his anxiety disorder substantially worsened. The Applicant provided detailed evidence of the prescription medicines on which he was relying.
Overlaying the concerns about his anxiety, and in fact adding to his anxiety, the physical symptoms that worried the Applicant in 2020 (about which he could not afford to have a CTCA scan) returned after the alleged dismissal on 15 February.
The Applicant became very concerned that the more stressful activities he took on the greater the likelihood of a catastrophic physical event. The Applicant’s evidence in this regard is summarised in the following passage from his evidence:
“Due to my anxiety disorder, I find I am now easily overwhelmed. I can only do one major thing at a time. Taking on more tasks can cause my anxiety to peak and at its worst, cause another panic attack (which I was worried could be an actual [catastrophic physical event]). With starting a new job the following week, I had to make a decision as to whether I pursued a claim with either the FWO or the FWC, but I knew I couldn’t do both. I was aware that I had to lodge my application for unfair dismissal with the FWC within 21 days of being terminated, but as the FWC website states that “The Fair Work Commission does not handle complaints about wages…” and my anxiety is affected by my financial security, I opted to lodge a claim with the FWO. This decision was also based on the fact that communication with the FWO could be done by phone and email, whereas the FWC would involve an in-person hearing, which would be too stressful for me.”
By late March 2021 (Day 42 after the alleged dismissal) the Applicant secured the services of a GP near his home on the Central Coast. There was some delay in obtaining medical records from the previous GP (whom the applicant had seen for 20 years).
By sheer coincidence a friend of the Applicant started a new job in April 2021 working for a medical specialist. That medical specialist agreed to see the Applicant at no cost and gave him a referral for a CTCA scan.
On 11 May 2021 (Day 92 after the alleged dismissal) the Applicant had a CTCA scan.
On 21 May 2021 the applicant received the ‘all clear’ from the specialist, which became a turning point for him. The Applicant says of this news:
“Due to receiving this news, I now felt confident that I could pursue matters to do with my dismissal knowing that if I got overwhelmed and suffered another panic attack, it would not be [physically related] and could be managed with medication.”
In early June 2021 the Applicant made an unfair dismissal remedy application and also commenced proceedings in the Local Court for recovery of monies said to be owed by the Respondent.
Section 394 – Exceptional Circumstances
An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)).
The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome.[3]
The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome.[4] The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as 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.
…
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances:
“(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.”
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:
(a) generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);
(b) the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);
(c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and
(d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).
Reason for the delay
I am required to take into account “the reason for the delay”.[5]
The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.[6] That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.
The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired.[7]
The Applicant relies upon his anxiety disorder and his other concerns about his physical condition.
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.
In Roberts v Westech IT Solutions Pty Ltd.[8] 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.
Similarly in Beard v Valley Industries Limited[9] 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”.
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.[10]
In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[11] 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.”[12]
In Merhi v Commonwealth of Australia[13] 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.”[14]
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.
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).
The Applicant provided some short medical evidence from Dr Bosman, who has treated the Applicant on the central coast since March 2021. Dr Bosman’s very brief report confirms the Applicant’s severe anxiety with panic attacks and also records the Applicant’s concerns about his physical health.
In light of the authorities above I am not able to place much weight on the opinion of Dr Bosman. Firstly, the Applicant did not see Dr Bosman until six weeks after his alleged dismissal, which means he cannot proffer any medical opinion about the Applicant’s capacity to make an application during the period prior to when he first saw the Applicant.
Secondly, Dr Bosman’s report does not explicitly address the key proposition advanced by the Applicant in his case: The Applicant says that he had only a limited capacity to engage in stressful activities after the alleged dismissal of his employment. He sought, obtained and started new employment within days of the alleged dismissal. He also pursued an underpayment claim with the FWO from February to June. The Applicant says that his severe anxiety, coupled with his concern about his physical condition, caused him to form the view that he could not take on a further stressful activity such as an unfair dismissal claim. Dr Bosman’s report doesn’t make any assessment of the Applicant’s capacity, let alone an assessment of whether the Applicant had or did not have any additional capacity.
The Respondent submitted that the Applicant made a conscious decision to choose other activities over commencing his unfair dismissal claim. This submission is literally correct insofar as the Applicant did pursue other activities instead of lodging his unfair dismissal claim. However, the Applicant’s case is slightly more nuanced because he says he had limited capacity (limited by his anxiety disorder coupled with his physical concerns) and chose to use his limited capacity in a certain way.
As explained above, when applicants rely on mental or physical health concerns in pursuing an application for an extension of time, the Commission tends to focus on the applicant’s capacity to make an application. The only finding available in this matter is that the Applicant had capacity to commence his application, albeit only a limited capacity. This finding then leads to a finding that the Applicant chose to apply his limited capacity to pursuing different paths instead of commencing his application – which is not an exceptional circumstance.
Understood in this way, taking into account all of the above, the Applicant’s explanation for the delay does not point towards the existence of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I am also required to take into account “whether [the Applicant] first became aware of the dismissal after it had taken effect”.[15]
This matter is somewhat unusual in the sense that the Respondent’s case is that the Applicant left of his own accord, and the Applicant’s case is that within 3 days of ceasing employment with the Respondent he obtained new employment – which for the purposes of s.394(3)(b) I can only take to mean that the Applicant was aware on 15 February 2021 that his employment had finished.
This is a neutral consideration.
Action taken to dispute the dismissal
In taking into account “any action taken by the person to dispute the dismissal”.[16] I note that the Applicant took no other steps to dispute his alleged dismissal prior to making his unfair dismissal remedy application.
This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.
Prejudice to the employer
I must consider the “prejudice to the employer (including prejudice caused by the delay).”[17]
The Respondent’s submissions and evidence refer to alleged prejudice that it would suffer if the Applicant received an extension of time. The prejudice relied upon by the Respondent is simply the inconveniences and dislocation it would suffer from having to defend the application. The Respondent does not identify any prejudice caused by the delay itself.
In my view the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.
Merits of the application
Section 394(3)(e) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.
Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice.[18]
In this context it is sufficient that an applicant establish that his claim is not without merit.[19] The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.[20]
As is already apparent, there is a significant dispute between the parties about whether the Applicant was dismissed from his employment or whether he resigned.
The significant aspects of the Respondent’s evidence is in the statement of Mr Hamid Rashidi-Far:
“I spoke with Victor shortly before 9am on 15 February 2021. During this conversation, I told him that the business could no longer will (sic) trade on Sunday’s but that we would still need him to work on Saturday. At that point he was working Saturday, Sunday and Monday.
…
At around 9am on 15 February 2021, Showroom Manager, Mary Toradello, came into work where she found myself at the front reception desk at the end of my chat with Victor. Mary and Victor had a conversation for which I present. An outline of the conversation is provided below:
Mary: "Good morning"
Victor: "I have been sacked"
Mary: “What? Are you ok?"
Victor "Nah just kidding, I' am still working on Saturdays".At 10:14pm on 15 February 2021, I received a text message from Victor notifying me that he had an interview for an Assistant Store Manager position at Beacon Lighting Gosford.
My preliminary assessment is that the application is not strong. I am content to find that the Applicant has an arguable case however I do not consider that the merits of the application point towards a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
Finally I must take into account “fairness as between the person and other persons in a similar position.”[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
The mandatory factors collectively
As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances.[22]
In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.
Conclusion
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. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr V Blanco, Applicant
Ms N Sandhu, for the Respondent
Hearing details:
2021.
Sydney (By Video)
21 July.
[1] (2014) 226 FCR 505, [2014] FCAFC 102 at [27].
[2] Edwards v Giudice (1999) 169 ALR 89, (1999) 94 FCR 561, [1999] FCA 1836 at [44].
[3] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].
[4] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].
[5] Fair Work Act 2009 (Cth), s.394(3)(a).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].
[7] Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].
[8] Glyn Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226
[9] Beard v Valley Industries Limited[2020] FWC 4523 at [16].
[10] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].
[11] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435 at [15]-[16].
[12] [2015] FWCFB 3435 at [15].
[13] Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services)[2020] FWCFB 3523 at [8], [37]-[39].
[14] Ibid.
[15] Fair Work Act 2009 (Cth), s.394(3)(b).
[16] Fair Work Act 2009 (Cth), s.394(3)(c).
[17] Fair Work Act 2009 (Cth), s.394(3)(d).
[18] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].
[19] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168
[20] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [71]
[21] Fair Work Act 2009 (Cth), s.394(3)(f).
[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [38]-[39].
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