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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Victor Blanco v White Bathroom

Details

AGLC: Victor Blanco v White Bathroom [2021] FWC 4694
Case: [2021] FWC 4694
Decision Date

CaseChat Overview and Summary

Victor Blanco applied to the Fair Work Commission for an unfair dismissal remedy, more than three months after his employment with White Bathroom Co Pty Ltd had ended. The Commission must dismiss the application because the Applicant did not file within the statutory time limit and the Applicant does not satisfy the requirements to obtain an extension of time. The Applicant represented himself at the hearing and Ms Sandhu, solicitor, appeared for the Respondent with the consent of the Applicant. The Applicant’s evidence was focused on the debilitating effects of his anxiety disorder. Although the Applicant’s evidence was compelling and heartfelt, the Commission was not satisfied that the Applicant’s circumstances were exceptional for the purposes of s.394(3) of the Fair Work Act 2009. The application for an unfair dismissal remedy must therefore be dismissed. The Applicant’s evidence about his anxiety disorder was not sufficient to satisfy the requirement to establish exceptional circumstances. The Applicant did not seek medical advice about his anxiety disorder until six weeks after his dismissal. His treating doctor’s report was very short and did not address the Applicant’s capacity to make an application. The Commission was not satisfied that the Applicant’s anxiety disorder affected his capacity to make an application for unfair dismissal. The Applicant did not take any steps to dispute his dismissal prior to making his unfair dismissal application. The Commission did not find that the Respondent would suffer any prejudice if the application was heard. The Commission considered the merits of the application and found that the Applicant has an arguable case, but that the merits of the application do not point towards a finding that there are exceptional circumstances. Finally, the Commission considered the fairness of extending time to the Applicant as compared to other persons in a similar position, and found that this consideration was neutral in the present matter. The Commission was not satisfied that there were exceptional circumstances either when the various circumstances were considered individually or together. The application for an extension of time must be dismissed.

Orders