1 Fair Work Act 2009 s.604 - Appeal of decisions Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (C2014/5232) VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEWIN BRISBANE, 15 JANUARY 2015 Appeal against decision [[2014] FWC 3903] of Deputy President Gostencnik at Melbourne on 12 June 2014 in matter number C2014/4350 - General protections application - Application lodged out of time - Whether discretion to extend time properly exercised - Permission to appeal - Whether grounds of appeal attract public interest - Permission to appeal not granted - Fair Work Act 2009, ss. 365, 366, 604. DECISION OF VICE PRESIDENT WATSON AND DEPUTY PRESIDENT SMITH Introduction [1] This decision concerns an application for permission to appeal against a decision of Deputy President Gostencnik handed down on 12 June 2014. The decision of the Deputy President concerned a refusal to grant an extension of time for the making of a general protections application under s.365 of the Fair Work Act 2009 (the Act). [2] At the hearing of the appeal, Mr Shaw appeared on his own behalf and Ms Manton appeared on behalf of Australia and New Zealand Banking Group Limited (the ANZ). The parties relied on written submissions filed in support of their respective positions and made supplementary oral submissions at the hearing of the application on 19 September 2014. The Decision under Appeal [3] Section 366 of the Act requires an application made under s.365 of the Act to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). Subsection (2) is as follows: “(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and [2015] FWCFB 287 DECISION f_p_n_1_ [2015] FWCFB 287 2 (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [4] Deputy President Gostencnik heard the application for the extension of time and after discussing each of the factors in s.366(2) by reference to the facts in the matter concluded as follows: “[39] Weighing all the matters in s. 366(2) and noting that I give substantial weight to the first consideration, there seems to me to be little that would establish that exceptional circumstances warranting a consideration of the exercise of my discretion to allow a further period within which Mr Shaw can make his application exist. True it is that Mr Shaw's application is not without merit, but the absence of an acceptable explanation for the delay of the whole period, bearing in mind that Mr Shaw had the full 21 days within which to lodge his application but waited until the last day of his miscalculated time period to act, in my view combine to outweigh merit and other considerations. [40] That Mr Shaw took minimal steps to dispute his dismissal and that there is no real prejudice to the ANZ, does not in my view result in a significant shift of the balance the other way. In the circumstances, I am not satisfied that there are exceptional circumstances and so I do not allow a further period within which the application may be made. Mr Shaw's application, under s. 365 of the Act, is dismissed.” Grounds of Appeal [5] Mr Shaw’s dismissal took effect on 11 April 2014 and he lodged his application with the Commission on 5 May 2014. The application was received three calendar days after the expiry of the 21 day period set down under s.366 of the Act but only one business day outside of the time period. [6] Mr Shaw raised several grounds of appeal which concerning the following alleged errors:  The requirement for an explanation of the whole of the period of the delay.  A failure to find that miscalculation of the date was an acceptable explanation for the delay.  The making of assertions as to Mr Shaw’s motivations and the risk involved in waiting until the last day to file his application.  The weighting given to the factors contained in s.366 of the Act. [7] The ANZ submits that the discretion vested in the Deputy President was properly exercised by him and that there is no error of an appealable nature in the decision of the Deputy President. f_p_n_2_ [2015] FWCFB 287 3 Permission to Appeal [8] Permission to appeal may be granted if there is sufficient doubt to warrant its reconsideration or an injustice may result if permission is not granted.1 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.2 [9] It is important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4 “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [10] We have considered the circumstances of this matter and the grounds of appeal advanced by Mr Shaw. Mr Shaw’s application was filed outside the statutory period for making the application, and by virtue of the provisions of the Act, Mr Shaw required the Commission to grant him an extension of time for filing his application. An extension of time can only be granted in exceptional circumstances. [11] In another appeal against a decision of the Deputy President in relation to an extension of time application the Full Bench said: 5 “[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay in lodgement. The delay is the period beyond the 21 day period specified in s.394(2)(a) after which the application was lodged—one day in the current case. The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed. [32] A fair reading of the Deputy President’s decision concerning the delay in lodgement discloses that his focus was on whether there was an acceptable explanation for the delay. He considered the explanation offered for the delay until 31 f_p_n_3_ [2015] FWCFB 287 4 May 2013—that the Appellant was acting on the basis gleaned from his termination letter—that his complaint about the dismissal would be addressed by the FWO. Whilst the Deputy President found that the Appellant consulted the FWO, lodged a complaint with that office and may have been led into believing that the FWO was the appropriate body to deal with his complaint about the dismissal, he made no finding in relation to the explanation for this period. It was unnecessary for him to do so because he found that when the Appellant was advised by the FWO that it had no jurisdiction to deal with his complaint in relation to the dismissal, the Appellant was still within time to lodge his unfair dismissal remedy application and failed to do so. He found that the Appellant waited until 3 June 2013 to access the Commission’s website and whilst he completed his application on that day, the Appellant waited until shortly after 5.00 p.m. on 4 June 2013 to lodge his application. The Deputy President found that no explanation was given for that delay. [33] Whilst the misapprehension of the Appellant as to the power of the FWO to deal with his complaint of unfair dismissal might have explained the non-lodgement of the application up until 31 May 2013, the Deputy President was right to find that there was no explanation of the failure of the Appellant to take any further action until 3 June 2013 and then, having completed his application form on that date, the failure to lodge the application until 4 June 2013.” [12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. [13] Whether the totality of the circumstances amount to exceptional circumstances is a value judgment properly described as a discretionary decision. A discretionary decision cannot be lightly overturned on appeal. It is not relevant to consider the outcome we would have reached if the matter was determined by us. Other members of this Commission have previously found that a miscalculation of the twenty one day period did not constitute exceptional circumstances.6 [14] We have carefully considered the reasons of the Deputy President where he considered two aspects of the delay and the way he expressed his conclusions. The first aspect was the impairment of the applicant at the time he was dismissed which led to a miscalculation. The Deputy President however could not find that this impairment could be called in aid for the whole of the period leading to the late lodgement. The second aspect was the stress, shock and confusion which was suffered by the applicant as a consequence of the termination of his employment. [15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual. f_p_n_4_ [2015] FWCFB 287 5 [16] A fair reading of the entirety of the Deputy President’s decision is that he considered the delay as the period beyond the 21 day period and considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. In our view that is the correct approach. We are not satisfied that any error in the decision-making process or otherwise has been established. Further, we do not believe that the decision gives rise to any public interest considerations sufficient to warrant granting permission to appeal. Conclusion [17] For the above reasons, we do not consider that Mr Shaw has established a basis for granting permission to appeal. The application for permission to appeal is dismissed. DECISION OF COMMISSIONER LEWIN [18] This matter is an application for permission to appeal a decision of Deputy President Gostencnik and if permission is granted an appeal against that decision. [19] The application is made by Mr Mitchell Shaw and concerns the decision of the Deputy President made on 17 June 20147 to refuse to allow a further period of one day beyond the statutory period prescribed for the making of an application by Mr Shaw under s.365 of the Act. [20] It is appropriate to provide a brief summary of the background to the filing of the application under s.365 of the Act. At the time of the termination of employment Mr Shaw was an employee of Australia and New Zealand Banking Group Limited (ANZ). Mr Shaw had made an application under s.789FC of the Act for an order to stop bullying, which he alleged was occurring in his employment with ANZ. ANZ terminated Mr Shaw’s employment after the application had been made. [21] The circumstances which lead to the making of the substantive application under s.365 of the Act are set out in the decision of the Deputy President in paragraphs [2] to [7] thereof. [22] Following the termination of Mr Shaw’s employment, ANZ sought and obtained an order dismissing Mr Shaw’s anti bullying application on the basis that ANZ had terminated Mr Shaw’s employment and consequently there was no further risk of Mr Shaw being bullied at work. [23] Following the termination of Mr Shaw’s employment, Mr Shaw filed the application under s.365 of the Act on the ground that the termination of his employment was adverse action taken by ANZ because he had exercised workplace rights to make complaints and inquiries in relation to his employment and had made the application to the Commission for an order to stop the alleged bullying under s.789FC of the Act. [24] The statutory provisions governing appeal of decisions of the Commission are contained in s.604 of the Fair Work Act 2009 (Cth) (the Act) and are set out below. “604 Appeal of decisions (1) A person who is aggrieved by a decision: f_p_n_5_ [2015] FWCFB 287 6 (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; may appeal the decision, with the permission of the FWC. (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (3) A person may appeal the decision by applying to the FWC.” [25] Mr Shaw’s application was made one day late, in circumstances which will become clearer in due course below. The circumstances required Mr Shaw to seek a further period of one day for the acceptance by the Commission of the application made under s.365 of the Act. [26] The relevant statutory provisions are prescribed by s.366 of the Act and are set out below: “366 Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows undersubsection (2). (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [27] A helpful summary of jurisprudence affecting the operation of the relevant statutory provisions is contained in the decision of Vice President Lawler in the case of McConnell v A & PM Fornataro T/A Tony's Plumbing Service.8 Albeit that there was a quantitative difference in the time allowed for the making of unfair dismissal applications and s.365 general protection applications at the time of the Vice President’s decision: f_p_n_6_ [2015] FWCFB 287 7 “[50] Both an application for an unfair dismissal remedy under s.394 and an application for FWA to deal with a general protections dispute involving dismissal under s.365 are subject to time limits (14 days in the case of a s.394 application and 60 days in the case of a s.365 application). In each case FWA has power to extend time, expressed in identical terms. For example, s.366(2) provides: “(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [51] In each case the power to extend time depends upon FWA being satisfied that there are “exceptional circumstances”. The introduction in the FW Act of this “exceptional circumstances” requirement involved a significant limiting of the discretion to extend time in relation to unfair dismissal claims: prior to the FW Act, the discretion to extend time for filing an unfair dismissal claim did not require special circumstances to be shown. In Brodie-Hanns v MTV Publishing Limited 9, the leading authority on the discretion to extend time for such claims, Marshall J held: “Special Circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.” [52] His Honour then listed favour factors that should be considered, which are largely replicated in s.394(3)(a) to (e) and s.366(2)(a) to (e). [53] In Cheval Properties Pty Ltd v Smithers a Full Bench of Fair Work Australia considered the meaning of the expression “exceptional circumstances” in s.394(3) and held: “[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” [54] The ordinary meaning of the expression “exceptional circumstances” was considered by Justice Rares in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed: f_p_n_7_ [2015] FWCFB 287 8 “23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances: ‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’ 24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397). 25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely: ‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’ 26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events. 27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.” f_p_n_8_ [2015] FWCFB 287 9 [55] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).” [28] The Deputy President addressed the statutory criteria applicable to the determination of Mr Shaw’s application for an extension of time between paragraphs [12] to [28] of the decision. [29] In my view it is necessary to set out at length Deputy President Gostencnik’s consideration of the delay in filing the application. “ [2] On 5 May 2014, Mr Shaw lodged with the Commission an application under s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute concerning an allegation that Mr Shaw’s dismissal occurred in contravention of the general protections provisions in Part 3-1 of the Act. Mr Shaw’s application was made outside of the time within which such an application may be made and so Mr Shaw now seeks to be allowed a further period within which to make his application. [3] The application about which this decision is concerned has been made in the context of some history between Mr Shaw and the ANZ, which warrants some recounting. Prior to his dismissal, Mr Shaw had been concerned for some time that he was the object of bullying behaviour at work. This concern resulted in Mr Shaw making an application under section 789FC of the Act for an order to stop bullying. Prior to Mr Shaw’s dismissal, ANZ had been investigating complaints that had been made by other employees of the ANZ about conduct and behaviour said to have been engaged in by Mr Shaw. [4] ANZ endeavoured to deal with these complaints by attempting to arrange meetings with Mr Shaw, at which time Mr Shaw was to be given an opportunity to respond to the allegations. For a variety of reasons, which are not materially relevant for present purposes, ANZ had not been able to meet with Mr Shaw prior to his dismissal. The allegations that had been made against Mr Shaw were ultimately set out in writing by ANZ in a letter, dated 7 March 2014. Mr Shaw was given an opportunity to respond; an opportunity which he took up in a written response, dated 24 March 2014. [5] ANZ says that on the basis of interviews with several employees, some of whom had complained about Mr Shaw’s conduct and behaviour, and Mr Shaw’s written response, it concluded that Mr Shaw had repeatedly failed to obey lawful and reasonable directions and that he had engaged in behaviour towards his managers and colleagues which constituted bullying or which was otherwise inappropriate behaviour in the workplace. This constituted the reason for dismissal, as set out in the letter of termination, dated 11 April 2014. [6] Following Mr Shaw’s dismissal, ANZ applied pursuant to s. 587(3) of the Act for an order under s. 587(1)(c) dismissing Mr Shaw’s application for an order to stop bullying. ANZ’s application was made on the ground that Mr Shaw’s application for an order to stop bullying had no reasonable prospect of success. This was because it could no longer be said, following the termination of Mr Shaw’s employment, that there was any risk that Mr Shaw would continue to be bullied at work by an individual or a group of individuals identified in his application. On 9 May 2014, I granted f_p_n_9_ [2015] FWCFB 287 10 ANZ’s application for dismissal and I dismissed Mr Shaw’s application for an order to stop bullying. [7] In his application that is the subject of this decision, Mr Shaw alleges that adverse action in the form of dismissal that took effect on 11 April 2014 was taken by ANZ in contravention of s. 340 of the Act, because Mr Shaw had exercised workplace rights. The workplace rights are constituted by complaints or inquiries made by Mr Shaw in relation to his employment in or about July 2011 and in or about August 2013, as well as the application that he made for an order to stop bullying to this Commission on 4 March 2014. [8] Turning then to the principles that are to be applied in determining whether to grant an extended period outside of the time prescribed by the statute. Mr Shaw’s dismissal took effect on 11 April 2014. His application to the Commission for it to deal with his dismissal-related general protections dispute should have been made within 21 days after the dismissal took effect. That is, by 2 May 2014. The application was made on 5 May 2014 and was therefore three calendar days outside of the time prescribed but only one business day outside of the time prescribed. [9] The Commission may allow a further period within which an application may be made, but the discretion to allow a further period will only be exercised if the Commission is satisfied that there are exceptional circumstances taking into account the reason for the delay, any action taken by Mr Shaw to dispute his dismissal, any prejudice to ANZ, including prejudice that is caused by the delay, the merits of the application and fairness as between Mr Shaw and other persons in a similar position. [10] The matters that must be taken into account, which are set out in s. 366(2) of the Act, are similar to but not the same as the matters that are to be taken into account in considering whether there are exceptional circumstances in the context of an unfair dismissal remedy application identified in s. 394(3) of the Act. It is with that note of caution that authorities which concern extensions of time about unfair dismissal matters are to be viewed in their application to the considerations set out in s. 366(2) of the Act. The statutory context and overall content is similar, but it is not the same. [11] It is clear from the structure of s. 366(2) of the Act that each of the matters that are set out therein must be taken into account when assessing whether there are, or exist, exceptional circumstances. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but those circumstances need not be unique, unprecedented or even very rare. Before considering whether to exercise my discretion to allow a further period it is first necessary, therefore, to consider whether there are in this case exceptional circumstances that would warrant that consideration. [12] Turning to the matters that are specifically set out in s. 366(2), and first to the reason for the delay. The authorities in this area make clear that there must be an acceptable reason for the delay. Mr Shaw needs to advance a credible reason, or credible reasons, explaining the whole of the period that the application was delayed. Mr Shaw advances two broad reasons, which were supplemented in oral argument at the hearing, as the reason for the delay or explaining the reason for the delay. f_p_n_10_ [2015] FWCFB 287 11 [13] First, Mr Shaw says that when he received the letter of termination on 11 April 2014, he was preoccupied in the preparation of his submissions in support of his application for an order to stop bullying which was due to be filed by him on 15 April 2014. Mr Shaw says that as a consequence of the bullying behaviour that he had experienced at ANZ, he had developed a panic disorder, post-traumatic stress disorder and a major depressive illness. He points to medical reports which were prepared on 18 February 2014, 25 February 2014 and 30 May 2014 in support of his contention. It is not disputed by ANZ that he suffers from the medical conditions which I have just outlined. [14] Mr Shaw says that the preparation of the submission in support of his application for a bullying order required him to re-live the experiences of bullying and, accordingly, his mental state was affected by feelings of anxiety and depression at the time. Mr Shaw does not provide any medical evidence which supports this contention, but ANZ did not cross-examine him on that point and I am prepared to accept that, at the time, there will have been some adverse effects on his mental condition by reason of the matters that he sets out and which are noted above. [15] Mr Shaw says that the receipt of the termination letter also caused an immediate spike in these conditions. He says that although he had anticipated that his employment might be terminated, the actual termination of his employment was still a shock. No medical evidence is provided to support this contention, but ANZ did not cross examine Mr Shaw on this contention and I am prepared to accept that he was in shock and, by reason of his mental condition, that shock was likely to have had an adverse effect on his overall mental wellbeing when he received the termination letter. [16] I take it from the submissions on this point that Mr Shaw makes, that at that time his cognitive functioning was affected by a combination of having to re-live unpleasant experiences as an employee of ANZ whilst he was preparing his bullying order submissions and, combined with the shock of the dismissal, this consequently was a contributing factor to the delay in making his application within the time prescribed. [17] The second point that Mr Shaw makes is that after receiving the letter of termination from ANZ, he consulted the Commission’s web site and downloaded the general protections bench book which is available on that site. On reading the bench book, Mr Shaw noted that there was a 21-day time limit which applied to applications of this kind. He noted that if the last day on which such an application could be made fell on a weekend or a public holiday, that he was entitled to lodge the application the next business day. [18] Mr Shaw says that he calculated the last day on which an application could be made by taking the first day following his dismissal and adding to it 21 days. He therefore concluded that the last day on which he could make his application was Saturday, 3 May 2014 and consequently concluded that he could make his application on Monday, 5 May 2014. Mr Shaw’s legal analysis was correct. However, his arithmetic was not. Mr Shaw says that once he calculated the last day on which his general protections application could be made, he had no cause to re-visit the issue. f_p_n_11_ [2015] FWCFB 287 12 [19] He says that the error that he made in the calculation was made at a time when he was fully occupied in the preparation of what he describes as complex and lengthy submissions to the Commission in relation to his application for a bullying order, the preparation of which exacerbated his anxiety and depression and that the notification of the termination of employment also caused a sudden elevation in these conditions. [20] Mr Shaw says that it was a simple error, which was one that he would not normally make, but it was made hurriedly in exceptionally stressful circumstances in which the symptoms of his illness impaired his thought processes. That proposition is not seriously challenged by ANZ and I accept that it was likely that the exacerbation at that time of Mr Shaw’s illness impaired his capacity to accurately calculate the period within which he was required to file his application. [21] Mr Shaw submitted a medical report dated 30 May 2014, which provides that Mr Shaw continues to be treated for post-traumatic stress reaction, a major depressive illness and panic disorders, and that his condition has not improved since the last report, being 18 February 2014. I have little doubt that the whole of the episode concerning Mr Shaw’s application for an order to stop bullying, the preparation of submissions in support of that application, his dismissal from his employment, dealing with and responding to ANZ’s application that Mr Shaw’s application for an order to stop bullying be dismissed, was stressful and was likely to have had an adverse effect on his depressive illness. [22] Stress, shock and confusion are not uncommon reactions or responses to a dismissal. In and of themselves, such responses are neither exceptional nor do they provide an acceptable reason that would explain the whole of the period that an application was delayed. However, I accept that Mr Shaw’s capacity to accurately calculate the time frame was impaired by reason of the matters outlined, and if that were the only matter that I had to take into account, I would readily find that there was an acceptable explanation for the delay. [23] Although Mr Shaw relies on his medical condition as an explanation for the whole of the period of the delay, there is no evidence that his cognitive functioning was impaired to such a degree as would have the result that he was unable to make the application within the time prescribed. Indeed, much of Mr Shaw’s conduct during the period between his dismissal and the date on which he made this application, is strongly suggestive of the contrary. [24] First, Mr Shaw was able to compile, complete and file submissions in support of his application for an order to stop bullying within the time that had been prescribed by me in directions that I had issued in relation to that application. Second, Mr Shaw was able to compile, complete and file submissions in opposition to ANZ’s application for a dismissal of Mr Shaw’s bullying orders application within the time prescribed by me in directions that I had made in relation to that application. Indeed, he filed those submissions some four days in advance of the date due. Third, Mr Shaw downloaded the general protections benchbook, read it and understood what was required of him in order to make an application within time. [25] That he was occupied in the preparation of the submissions to which I have just f_p_n_12_ [2015] FWCFB 287 13 referred is not an acceptable reason for the delay and, as I indicated, is suggestive of a clear capacity to comply with time lines. Mr Shaw says that during the period he also had family obligations to attend to and that he was the primary carer of his very young child. I accept that that is so, but those matters are not matters which are unusual and they are matters which face many other people in the community. They do not provide an acceptable explanation for the delay. [26] It seems to me that Mr Shaw simply miscalculated the date on which the application had to be made and that is the explanation for the delay. As I indicated, even if I accept, and I do accept, that the error was made in exceptionally stressful circumstances where symptoms of his illness impaired his thought process, that merely provides an explanation for the miscalculation and perhaps an explanation for part of the delay. It does not provide an explanation for Mr Shaw’s action to delay the application until the last day that he had calculated. [27] There is no evidence which would suggest that he was prevented from or seriously impaired, by reason of his depression or his panic disorder, in making the application at some earlier point. It seems to me that Mr Shaw elected to wait until the last day on which he thought he could make the application. That he made that election compounded his earlier error, but it does not provide an acceptable explanation for the whole of the period of the delay. [28] As I indicated during my exchange with Mr Shaw earlier in this hearing, a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation. Taken in its totality, Mr Shaw’s explanation of the reasons for the delay does not, in my view, provide an acceptable explanation for the whole of the period. The absence of an acceptable explanation for the whole of the period weighs against Mr Shaw in this matter.”9 [30] In addition to the reasons set out above, the Deputy Presidents said this in conclusion at paragraph [39] of the decision: “[39] Weighing all the matters in s. 366(2) and noting that I give substantial weight to the first consideration, there seems to me to be little that would establish that exceptional circumstances warranting a consideration of the exercise of my discretion to allow a further period within which Mr Shaw can make his application exist. True it is that Mr Shaw's application is not without merit, but the absence of an acceptable explanation for the delay of the whole period, bearing in mind that Mr Shaw had the full 21 days within which to lodge his application but waited until the last day of his miscalculated time period to act, in my view combine to outweigh merit and other considerations.” (emphasis added) [31] The extensive discussion and reasoning above, concerning the delay in filing the application under s.365 of the Act is the subject of the grounds upon which Mr Shaw seeks permission to appeal. f_p_n_13_ [2015] FWCFB 287 14 [32] It will be observed that where the Full Bench of the Commission is satisfied that a decision subject to appeal raises issues which are of public interest it must grant permission to appeal. In my judgment the decision raises matters of public interest. [33] Those matters concern; what is properly characterised as “the delay” for the purposes of s.366(2)(a) of the Act, the approach to be taken to the consideration of the reason for the delay in filling an application out of time and the approach of the Commission to circumstances where an employee seeks a further period for the acceptance of an application on medical grounds. [34] In my view, having regard to the nature of a putative application under s.365 of the Act and the very significant legal consequences which flow from a decision to allow or not allow acceptance of such an application the above considerations raise matters of broad principle These matters are of importance beyond the immediate interests of Mr Shaw and ANZ. I consider them to be matters of general importance to the Commission’s discretionary power as provided by s.366 of the Act and therefore matters of public interest. [35] On my reading of the approach taken by the Deputy President it is somewhat uncertain if the decision proceeds on the basis that “the delay,” which will the subject of consideration under s.366(a) of the Act, is the period between the end of the period prescribed by the statute for the filing of the application or the “whole of the period” from the commencement of the statutory period. [36] In the case of Ozsoy v Monstamac Industries Pty Ltd10 the Full Bench of the Fair Work Commission, on appeal, considered an application for an unfair dismissal remedy made out of time under s.394 of the Act filed and said as follows: “[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay in lodgement. The delay is the period beyond the 21 day period specified in s.394(2)(a) afterwhich the application was lodged—one day in the current case. The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.” (emphasis added) [37] It will be observed that in the discussion of the delay on Mr Shaw’s part in filing the application under s.365 of the Act, the Deputy President reformulates or reiterates the text of the Full Bench’s decision in various ways. [38] In my view, the decision of the Deputy President raises questions concerning the proper construction of the meaning of the decision of the Full Bench in Ozsoy v Monstamac Industries Pty Ltd11 and the approach stated therein to an application to allow a further period of time to file an application under s.365 and s.394 of the Act, as the relevant provisions are the same, as noted by Vice President Lawler above. [39] It is therefore appropriate to consider the proper identification of what constitutes “the delay” which is the subject of s.366(2)(a) of the Act. f_p_n_14_ [2015] FWCFB 287 15 [40] I most respectfully concur with the decision of the Full Bench as cited and emphasised above. The delay is the period between the expiry of the statutory period and the filing of the application. [41] Moreover, I agree respectfully agree with the Full Bench that the circumstances between the commencement of the statutory period and its expiry will be relevant when considering the reason for “the delay”. However, the statutory period does not form a part of the delay contemplated by the relevant statutory provisions. It seems to me that the last sentence of paragraph 31 of the Full Bench decision in Ozsoy v Monstamac Industries Pty Ltd12 is capable of giving rise to uncertainty and has done so in the course of the its reiteration and reformulation in the Deputy President’s decision above. [42] In my view, that uncertainty concerns what constitutes “the whole of the period that the application was delayed” as referred to in the extract from the Full Bench in the decision above and variously deployed in the Deputy President’s reasons for decision. [43] Logical consistency with the Full Bench’s decision requires that the period of “the delay” including what is the “whole of the delay,” must be the time between the end of the statutory period allowed and the filing of the application. [44] The relevant meaning of the words the “whole of the delay” in my view is clear. If an application is lodged 28 days beyond the end of the statutory period for the filing of the application it is incumbent upon an applicant for an extension of time to explain the reason for the whole of the 28 day period following the end of the statutory period for the filing of the relevant application. [45] While the circumstances which apply during the statutory period for the making of the an application under s.365 form a relevant consideration, it is inconsistent with the logical predicate of the Full Bench decision to characterise any part of the statutory period as a part of the period of “the delay”. Whilst the distinction may seem subtle, in my view, it is a matter of substance and consequently certainty thereof is in the public interest. [46] In the present case the Deputy President seems to have accepted that there was a plausible and seemingly acceptable reason for “part of the delay.” I consider that reference must be to a part of or the whole of the one day for which the application was delayed. Otherwise it seems inescapable that the statutory period was conceived of as part of the “whole of the period of the delay” in the Deputy President’s decision. [47] A careful reading of the Deputy President’s decision will show that what he considered “perhaps explained the delay in filing the application by one day,”13 was a mental illness from which Mr Shaw was suffering at the time of the termination of his employment by ANZ. [48] At paragraph [13] of the Deputy President’s decision it will be noted that at the time of the termination of his employment Mr Shaw was suffering from: a panic disorder post traumatic stress major depression f_p_n_15_ [2015] FWCFB 287 16 [49] This is a complex triple diagnosis of mental illness, incontrovertibly proven by medical evidence before the Deputy President. The Deputy President accepted that the termination of Mr Shaw’s employment was likely to have had “some adverse effects” on Mr Shaw’s mental condition. The Deputy President elaborated and affirmed this conclusion at paragraph [15] of his decision. [50] The Deputy President revisited the mental illness of Mr Shaw at paragraph [21] further in the affirmative. However, at paragraphs [22] [23] and [24] the Deputy President comprehends stress, shock and confusion as a response to the termination of Mr Shaw’s employment as not being uncommon or exceptional and equates stress and anxiety arising from dismissal with what would normally be experienced by an employee whose employment is involuntarily terminated. However, the Deputy President concludes that if this was the only matter to be taken into account he would readily find the mental illness of Mr Shaw to be an acceptable explanation for the delay. Presumably “the reason for the delay”. [51] It seems to me that the Deputy President’s observation that a person whose employment is terminated involuntarily will usually experience a degree of shock and stress is cogent and widely recognised in the decisions of Courts and Tribunals administering statutory provisions which operate in relation to termination of employment. However, the reason for the delay which was advanced by Mr Shaw was not the usual level of such responses. Rather, Mr Shaw relied upon highly significant and medically proven mental illness. The proven complex clinical diagnosis and the severity of the mental illness diagnosed, from which Mr Shaw was suffering when he took steps to file the application under s.365 of the Act, is far from common. Rather, that medical condition and its effects on the cognitive capacity of an individual can only be considered an exception, something out of the normal course, not circumstances which would usually apply to an employee whose employment is involuntarily terminated. [52] In my view, the Commission’s approach to the subjectively perceived effect on an employee of the shock and stress of the involuntary termination of their employment on one hand and the impact upon persons suffering severe, undisputed, clinically diagnosed mental illness on the other is a matter of public interest. I consider there is an important distinction between what might usually be experienced subjectively as stress, shock or anxiety and objectively proven severe mental illness for the purposes of s.366(2)(a) of the Act, when considering if there are exceptional circumstances operating in relation to a termination of employment and the subsequent filing of a relevant application under the Act. I consider the decision raises important questions concerning the approach to medical evidence which establishes mental illness in the relevant circumstances. [53] It is for these reasons I would grant permission to appeal in the public interest. Where permission to appeal is granted the appeal proceeds by way of rehearing on the evidence before the Deputy President. The decision of the Deputy President is of a discretionary nature. The principles governing an appeal against such a decision14 require that the decision will only be overturned where error is identified. [54] In my view, with great respect, the Deputy President’s decision is affected by error. The error is of two kinds or alternatively of two dimensions. [55] The first error is the approbation and reprobation of the reason for the delay as comprising exceptional circumstances. It seems to me that having accepted that the f_p_n_16_ [2015] FWCFB 287 17 exacerbation of Mr Shaw’s mental illness explained a part of the delay, which on my construction of the relevant delay, following the decision in Ozsoy v Monstamac Industries Pty Ltd15, is one day, it was an error to then discount that reason because of Mr Shaw’s actions during the statutory period in attempting to and successfully complying with directions issued by the Commission in relation to his application made under s.789FC of the Act. [56] The second error was to make a finding against the weight of the evidence. Which finding was that the exacerbating effect of the termination of Mr Shaw’s employment on his mental illness was in fact to be considered unexceptional and that, contrary to the uncontested medical diagnosis, Mr Shaw was not affected by mental illness such that this could comprise the reason for the delay by miscalculation of the date when the application was to be filed within the statutory period. [57] Mr Shaw’s conduct, in the Deputy President’s judgment demonstrated unimpeded competence during the statutory period. However, Mr Shaw gave uncontested evidence that it was the effect of his mental illness in all the relevant and somewhat unusual circumstances in which his employment was terminated that caused him to miscalculate the date upon which the statute required the application under s.365 of the Act to be filed. In my view, in light of the comprehensive and uncontroversial medical evidence of severe mental illness there was no basis on which to reject this evidence as the reason for the miscalculation. On the contrary the evidence was wholly consistent with the medical evidence and was not challenged by ANZ in cross examination of Mr Shaw. [58] In my view, the overwhelming weight of the evidence compelled a finding that the reason for the delay of one day was Mr Shaw’s severe mental illness which caused Mr Shaw to make an erroneous calculation of the statutory period for the filing of the application. The exceptional circumstance was not the miscalculation. Rather, the exceptional circumstance was the severe mental illness from which Mr Shaw was suffering when the miscalculation was made. [59] The reason for the delay was an uncontested medical diagnosis of severe mental illness’ which condition constituted exceptional circumstances to those which an employee would usually experience when subject to the involuntary termination of their employment. [60] This severe mental illness was exacerbated by the termination of Mr Shaw’s employment in the midst of anti bullying proceedings before the Commission which lead to a miscalculation of the date upon which the statutory period would permit filing of the application. [61] The application under s.365 of the Act was a response to ANZ’s termination of Mr Shaw’s employment in stressful circumstances at a time Mr Shaw suffered from a severe mental illness which was compounded by the termination of his employment and in respect of which the s.365 application was filed. [62] It will have been observed that if the reason for the delay, so characterised, had been considered by the Deputy President as indicative of exceptional circumstances the other considerations required by s.366(2) of the Act, as addressed, by the Deputy President, weighed in favour of a finding of exceptional circumstances or at least not against such a finding. f_p_n_17_ [2015] FWCFB 287 18 [63] I would uphold the appeal, quash the decision of the Deputy President and grant the extension of time having regard to the statutory considerations which must be taken into account under s.366 of the Act for the following reasons. [64] The reason for the delay of one day in filing the application was severe mental illness which led to a miscalculation of the time in which the application was to be filed. [65] In the unusual circumstances and time available Mr Shaw could not have effectively disputed his dismissal except in accordance with the Directions by the Commission to respond to ANZ’s application for the dismissal of his s.789FC application. [66] There is no prejudice of the relevant kind to ANZ. [67] Mr Shaw’s application is not without merit. [68] In my view, a person in a like position will be person’s who’s employment is terminated by their employer after having made an application for an anti bullying order under s.789FC of the Act, who is suffering from a medically diagnosed mental illness. [69] Weighing all of the circumstances in which Mr Shaw’s s.365 application was made, including the extent of the delay, and taking into account all of the above, I consider there were exceptional circumstances applicable to the case at the time of the termination of Mr Shaw’s employment that affected the filing of the application under s.365 of the Act. Moreover, having therefore found that the discretionary power to allow a further period of one day for the acceptance of the application arises, I would consider it would be fair and just to do so.16 I would provide a further period of one day for the acceptance of the s.365 application. VICE PRESIDENT WATSON Appearances: Mr M. Shaw on his own behalf. Ms K. Manton for Australia and New Zealand Banking Group Limited T/A ANZ Bank. Hearing details: 2014. Melbourne. September 19. f_p_n_18_ [2015] FWCFB 287 19 Final written submissions: Mr Shaw on 5 August 2014. Australia and New Zealand Banking Group Limited T/A ANZ Bank on 4 September 2014. Printed by authority of the Commonwealth Government Printer <Price code C, PR559987> 1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481. 2 Fair Work Act 2009, s.604. 3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ. 4 Ibid. 5 Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149. 6 Appeal by Jonathan Hart [2014] FWCFB 3270. 7 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903. 8 [2011] FWAFB 466 (31 January 2011). 9 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903. 10 [2014] FWCFB 2149. 11 Ibid. 12 Ibid. 13 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903 at paragraph [26]. 14 House v The King (1936) 55 CLR 499. 15 [2014] FWCFB 2149. 16 Fair Work Act 2009 (Cth), s.577. f_p_n_19_