[2024] FWC 2992 1 Fair Work Act 2009 s.365—General protections Simon Hall v Moag Pty Ltd (C2024/5972) DEPUTY PRESIDENT BOYCE SYDNEY, 29 OCTOBER 2024 Application to deal with contraventions involving dismissal – 32 day delay in filing application – request for an extension of time - no exceptional circumstances – application dismissed Overview [1] On 24 August 2024, Mr Simon Hall (Applicant) filed a General Protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act), alleging that he was dismissed by Moag Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. [2] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s.366(2) of the Act). [3] The Applicant commenced work for the Respondent as a crane operator on 22 February 2024. On 28 May 2024, the Applicant suffered a workplace injury. On 18 June 2024, the Applicant became involved in an altercation at work. The Respondent’s management became aware of the altercation on 29 June 2024, and conducted an investigation into the altercation.1 The Respondent dismissed the Applicant for misconduct in respect of the altercation. [4] It is not in dispute that the Applicant was dismissed for reasons of misconduct on 2 July 2024 during his probation period. 21 days after the date of this dismissal is 23 July 2024, meaning the Applicant should have filed his Application on or before 23 July 2024 for it to have been filed within the statutory time limit. The Application was filed on 24 August 2024, making it 32 days past the 21-day statutory time limit. The Applicant now requests an extension of time to file his Application. [5] The Respondent opposes any extension of time being granted. 1 Regarding the investigation conducted by the Respondent, see Statement of Mr Michael Leach (dated 8 October 2024), at [4]-[7]. DECISION [2024] FWC 2992 2 [6] At the hearing conducted on 16 October 2024, the Applicant, Mr Simon Hall, appeared for himself, assisted by his mother, Mrs Anne Patricia Hall. Mr Tyler Clews, Industrial Relations Manager, appeared on behalf of the Respondent, assisted by Ms Brooke Jenkinson, Senior Industrial Relations Advisor. Legal Principles [7] Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated: “[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. [14] Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) is not an exceptional circumstance…”2 [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.” (emphasis added) [8] The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are set out under s.366(2) of the Act, which reads: “366 Time for application … 2 [2011] FWAFB 975. [2024] FWC 2992 3 (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.” [9] Each of the individual matters under s.366(2) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.3 [10] In Mohammed Ayub v NSW Trains4, a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”. [11] It is well settled that the statutory words ‘have regard to’ or ‘take into account’ (as used in s.366(2) of the Act) require the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel5: “Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”6 (my emphasis) Reason for delay7 [12] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group8 (Bianco Mamo), as follows: “[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901. 4 [2016] FWCFB 5500. 5 (1964) 38 ALJR 293. 6 Ibid, at 301. 7 Section 366(2)(a), Fair Work Act 2009. 8 [2021] FWC 3903. [2024] FWC 2992 4 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. [12] 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. 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). [13] 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 explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.” [13] Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.9 An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,10 but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.11 [14] In Bianca Mamo, Deputy President Easton outlined issues associated with illness (including mental illness) and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows: “[19] 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 were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances. [20] 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. [21] 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 9 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39]-[40]. 10 Ibid, at [40]. 11 Shaw v ANZ Bank [2015] FWCFB 287, at [12]. [2024] FWC 2992 5 reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual. [22] 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.” [23] 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.” [24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence 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. [25] 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 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 Underwood and Merhi); and [2024] FWC 2992 6 (iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”12 [15] I concur with and adopt the foregoing principles.13 [16] The Applicant set out his reasons for delay in writing, they read: “I was injured at work on 28/05/2024. TABLE 2 below explains the extreme pressure I was under both mentally and physically both after the injury and after the “dismissal”. This table shows the course of events that transpired leading up to my ‘dismissal’ on 2nd July 2024. It is evidence of the extreme pain and intense emotional pressure I was under between 28th May and 2nd July. This illustrates what led up to the mental desperation I was subject to after my dismissal and my returning home. TABLE 1 below outlines my situation between July 2nd and current which goes to explain as best to my ability the reasons for my late Application for General Protection. The extreme pressure I was under is explained by: 1. I had no direction or advice regarding my injury from the company after my ‘dismissal”. 2. I was extremely anxious over my financial situation, my mortgage and my future employment prospects 3. I was not informed by the company of any cover for my medical expenses. 4. I was in acute pain which I couldn’t seem to get relief from 5. I had no family support as they were unavailable overseas 6. I couldn’t look after myself 7. Surgery 8. Post surgery recovery 9. I didn’t understand rules around unfair dismissal or general protection 10. Company offered to change my dismissal to resignation on the condition of FairWork application discontinued” [17] In support of his reasons for delay, the Applicant also relied upon detailed tables, alongside various attachments, and some medical records. [18] It is also noted that the Applicant filed an Unfair Dismissal application on 18 July 2024, within the 21-day statutory time limit, but was informed by the Fair Work Commission on 23 July 2024 (being exactly 21 days after his dismissal) that he was not eligible to make an Unfair 12 [2021] FWC 3903, at [19]-[25], footnotes omitted. 13 See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire) [2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy [2012] FWA 7744. [2024] FWC 2992 7 Dismissal application due to his short period of service, and was advised that he could alternatively make a general protections involving dismissal application. [19] The Respondent’s submissions in response to the Applicant’s reason for delay read: “Applicant’s capacity to make an application between 3 July 2024 and 23 July 2024 17. In his submissions the Applicant outlines a series of general reasons including anxiety over his financial situation, lack of direction regarding the management of his injury, acute pain, lack of family support, surgery, and post-surgery recovery, and lack of understanding around the statutory rules. 18. The Applicant successfully submitted an unfair dismissal application on 18 July 2024 and contacted the Fair Work Commission on 23 July 2024 regarding the progress of his application. This is evidence that the Applicant was capable of engaging in formal dealings relating to his dismissal for the length of the 21-day time limit which weighs against the exercise of discretion in this matter. 19. The Applicant submits that he was advised by a representative of the Fair Work Commission on 23 July 2024, 21 days after dismissal, that his unfair dismissal application would be unsuccessful due to his length of service (less than 6 months) and that he was instead advised to make a general protections application involving dismissal. The Applicant failed to follow this advice until 24 August 2024. 20. The Applicant submits that “[he] wasn’t aware that there was a time limit for the General Protection application so [he] decided to wait until after [his] surgery to apply to give it [his] best attention.”“ No other explanation was given to explain why the Applicant did not make a general protections application when advised to do so on the 23 July 2024 which was the 21st day following the Applicant’s dismissal. 21. The Commission has confirmed there is nothing exceptional about being unaware of the statutory time limits. There is also nothing exceptional about an applicant initially filing in the wrong jurisdiction.” Applicants switching to the general protections jurisdiction when informed that their unfair dismissal application will be unsuccessful because they do not meet the minimum engagement period is unremarkable and should not weigh in favour of the Commission exercising discretion. Further delay post 21-day time limit 22. The Applicant gave no explanation for his failure to lodge the Application on the 24 July 2024, 22 days post dismissal. This weighs against the exercise of discretion to grant in extension of time. [2024] FWC 2992 8 23. It is the Respondent’s Health and Rehabilitation Coordinator states that patients are typically able to complete administrative tasks, take phone calls, and engage with a computer using a keyboard and a mouse in the days following the type of surgery the Applicant received on 25 July 2024. 24. The Applicant confirmed that he was advised by his surgeon that his surgery had gone well, and his recovery was going as well as expected. 25. The Applicant showed no evidence that his post-surgery experience was irregular or outside of normal recovery parameters. 26. The Respondent concedes that the Applicant’s surgery on 25 July 2024 may explain his failure to make his application on the 25 July 2024, and perhaps some days following the surgery. But the Respondent submits the surgery does not adequately explain the Applicant’s delay in filing until 24 August 2024. 27. This further significant delay should weigh against the Commission’s exercise of discretion in this matter. 28. The Applicant was made aware of the need for surgery on 17 July 2024, which was 14 days post dismissal, and within the 21-day time limit. The Applicant’s failure to make his application with the appropriate foresight is unremarkable and should further weigh against the Commission’s exercise of discretion in this matter.” [20] In making the foregoing submissions, the Respondent relies (in part) upon the witness statement of Ms Zoe Huitenga dated 8 October 2024. Ms Huitenga’s statement sets out her opinion and experience in relation to recovery (including recovery time) for injuries similar to those sustained by the Applicant. I do not give any weight to Ms Huitenga’s statement in that it is of no probative value to the specific circumstances of the Applicant’s injury, surgery and subsequent (and ongoing) recovery. [21] Whilst I accept that the Applicant’s injury, surgery (on 25/7/24), and subsequent (and on-going) recovery, provides an explanation for some of the 32-day period of delay, the Applicant has failed to properly explain the basis upon which he was prevented, during the full 32-day period, from filing his Application. Further, he has not explained why he was able to file his Application on 24 August 2024, but not prior. In other words, what was it that changed on 24 August 2024 that the Applicant was suddenly able to file his Application on that date? [22] In short, the Applicant has relevantly failed to explain what occurred between 12 and 24 August 2024 such that he was prevented or unable to file his Application during those dates. [23] At the hearing on 16 October 2024, the Applicant was asked to explain the 32-day delay in the filing of his Application, to which he replied that as he recovered from his surgery, he ‘had to worry about all sorts of other things’,14 including cleaning the house, cooking, and hygiene. While this explanation is understandable in the circumstances, it does not satisfactorily 14 Transcript, PN20. [2024] FWC 2992 9 explain the full length or period of the delay, nor why the Applicant could not have allotted a portion of time aside to prepare the Application, which he knew was overdue, rather than attending to other tasks that, while important, did not have a statutory deadline. [24] The Respondent raised at the hearing that the Applicant wanted to “wait until after his surgery to apply”15 in order to ‘do his best’ in preparing his Application. The Respondent argued that this was “understandable, but […] not exceptional, and doesn’t explain the whole reason for the delay for that 21-day period”.16 I accept this, and find this to be consistent with the failure of the Applicant to explain what changed on 24 August 2024 such that he was suddenly able to file his Application. [25] I find that the Applicant’s reasons for delay in this case do not weigh in favour of a finding as to the existence of exceptional circumstances. Action taken by the Applicant to dispute his dismissal17 [26] The Applicant filed an Unfair Dismissal application on 18 July 2024, then became aware on 23 July 2024 that the application had no jurisdictional foundation to proceed. There is no indication that he took any further action to dispute his dismissal prior to filing his Application. I do not consider that any conduct by the Applicant to dispute his dismissal prior to the filing of his Application is such that it weighs in favour of a finding as to the existence of exceptional circumstances. I treat this criterion as a neutral consideration. Prejudice18 [27] There is no suggestion of any prejudice to the Respondent being occasioned by the 32 day delay. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.19 I treat this criterion as a neutral consideration. Merits20 [28] The principles stated Kyvelos v Champion Socks Pty Ltd21 (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here: “In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position 15 Ibid, PN65. 16 Ibid. 17 Section 366(2)(b), Fair Work Act 2009. 18 Section 366(2)(c), Fair Work Act 2009. 19 Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]). 20 Section 366(2)(d), Fair Work Act 2009. 21 (1995) 67 IR 298. [2024] FWC 2992 10 to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.22 [29] In Kornicki v Telstra-Network Technology Group,23 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application: “If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”24 [30] The Respondent says that it relied solely upon the Applicant’s conduct in respect of the altercation that occurred on 18 June 2024 as its reason for dismissal. The Applicant does not deny that an altercation occurred on 18 June 2024, but characterises his conduct during that altercation differently to that contained in the Respondent’s investigation findings. The Applicant further says that he apologised to the persons involved in the altercation, and was told (and understood) that any issues or concerns in relation to the altercation had already been dealt with at or about the time that he apologised. He says that he was surprised that the altercation was brought up again, and says that it has only been brought up again because he suffered a workplace injury, made a claim for worker’s compensation, and needed time off work due to his injury. The Respondent says that its management only became aware of the 18 June 2024 altercation on 29 June 2024, were obliged to investigate it, and that the outcome of that investigation reflects its reason for dismissing the Applicant (not his workplace injury or his worker’s compensation claim or his time off work). [31] All in all, given the very limited and untested evidence before me, and the nature of the disputed issues between the parties (which were not resolved at the out of time hearing), I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for nor against any finding as to the existence of exceptional circumstances in this case. 22 Ibid, at 299 to 300. 23 Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C). 24 Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36]. [2024] FWC 2992 11 Fairness as between the Applicant and other persons in a similar position25 [32] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.26 Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration. Conclusion [33] I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard, considering the criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. one criterion does not weigh in favour of a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral). Considering the relevant criteria on an individual basis, none of the criteria point towards the existence of exceptional circumstances.27 [34] On the basis of the reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case.28 In view of this finding, there is no basis at law for me to grant an extension of time. I therefore reject the Applicant’s request for an extension of time. The Application filed by the Applicant in these proceedings is dismissed. An Order to this effect will be published contemporaneously with this decision. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR780696> 25 Section 366(2)(e), Fair Work Act 2009. 26 Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37]. 27 See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901. 28 Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].