Victoria Elizabeth Flores Herrera v Australian Gift & Homewares Association Limited, Dean Osmond
[2024] FWC 1920
•22 JULY 2024
| [2024] FWC 1920 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Victoria Elizabeth Flores Herrera
v
Australian Gift & Homewares Association Limited, Dean Osmond
(C2024/3200)
| COMMISSIONER P RYAN | SYDNEY, 22 JULY 2024 |
Application to deal with a dismissal dispute – application made out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Victoria Elizabeth Flores Herrera (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, the Applicant states that she was dismissed from employment with Australian Gift & Homewares Association Limited (Respondent) with effect from 23 April 2024. The Application was made on 15 May 2024.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 14 May 2024. The Application was therefore made 1 day outside the 21 day period. The Applicant asks the Commission to allow a further period for the Application to be made under s.366(2).
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.
The matter was heard before me on 18 July 2024. The Applicant was self-represented. The Respondent was represented by its chief executive officer, Ms Linda Hickey.
The matter proceeded based on the written submissions filed, supplemented by oral submissions during the hearing.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) 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 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) 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 application for the Commission to deal with a dismissal dispute.[3]
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.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
Furthermore, the Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]
The Applicant relies on two reasons for the delay: technical difficulties and incapacity/ mental health.
Technical Difficulties
In response to question 1.5 of the Application, the Applicant explained the reason for not making the Application within 21 day timeframe:
The website kept on crashing on me.
Where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties in lodging an application before the Commission, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.[7]
In Giles v Coal Train Australia Pty Ltd[8], Deputy President Asbury (as the Vice President then was) stated:
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application.
[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
Beyond the explanation set out in the Application, the Applicant did not provide any further written submissions or evidence in support of this reason.
In her oral submissions, the Applicant stated that the technical difficulties were the crashing of the Commission’s website on 15 May 2024 – after the 21 day period had expired, but prior to the making of the Application.
Noting the complete lack of any supporting evidence, and taking the Applicant’s submissions at their highest, I am not satisfied that the technical difficulties described constitute an acceptable or reasonable explanation for the delay.
Incapacity – mental health
The extent of the Applicant’s written submissions are as follows:
I would like to state the that I Victoria Flores Herrera believe that AGHA had 15 staff at the time that I was made redundant and not 13 as I was led to believed.
I have attached a chart where you can see all the staff and their positions This has been a very difficult time for me and my mental health, I’m not asking for additional payment I’m only asking for my redundancy package I would also like to add that a I don’t think this is genuine redundancy as my role as membership coordinator is integral to the business! Been [sic] an association.
In Victor Blanco v White Bathroom,[9] 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]
In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd[10], a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:
“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical 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.
The Applicant has not adduced any medical evidence, let alone any ‘compelling’ medical evidence, that she suffers from a mental health condition and that it had a material impact upon her capacity to make the Application within the statutory time limit.
In her oral submissions, the Applicant stated that in the period following her dismissal she was able to complete applications for prospective employment and attended the Respondent’s premises for her farewell function. The Applicant has not satisfactorily explained how she was able to undertake these tasks yet was unable to make the Application within the statutory time limit.
In the absence of medical evidence supporting incapacity such to prevent the filing of the Application within the statutory time limit, I do not consider medical incapacity is an acceptable and reasonable explanation for the delay.
Reason for delay - conclusion
The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – 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.[11]
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.[12]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to the making of the Application. This factor weighs against a conclusion that there are exceptional circumstances.
s.366(2)(c) – 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.
s.366(2)(d) – 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 Applicant’s employment was dismissed due to her position being made redundant following a restructure of the Respondent’s business. In the proceedings before me, the Applicant confirmed that she does not contend that the Respondent’s decision to dismiss her was in contravention of Part 3-1 of the FW Act. Rather, the Applicant takes issue with the Respondent’s contention that it is a small business employer and therefore exempt from the obligation to pay the Applicant redundancy pay under s.119 of the FW Act (per s.121 of the FW Act).
In my view, the Application has no reasonable prospects of success. This factor weighs strongly against a conclusion that there are exceptional circumstances.
s.366(2)(e) – 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’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.
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.366(2).
Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision. Notwithstanding the outcome of this matter, it is open to the Applicant to pursue the redundancy pay issue in a court of competent jurisdiction.
COMMISSIONER
Appearances:
Hearing details:
2024.
Sydney:
18 July.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Ibid at [38]-[39].
[6] Ibid at [40].
[7] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[8] [2020] FWC 2274 at [38]-[39].
[9] [2021] FWC 4694 at [44]-[51].
[10] [2023] FWCFB 113 (Higgins) at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[12] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
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