Andrew Kenneth Duffy v McHugh Steel [2024] FWC 362

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Kenneth Duffy v McHugh Steel (U2023/12905) DEPUTY PRESIDENT LAKE BRISBANE, 13 FEBRUARY 2024 Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time granted. [1] Mr Andrew Duffy (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with McHugh Steel (the Respondent). [2] On the Form F2 Application, the Applicant states that he commenced employment with the Respondent around October 2021 and was dismissed on 22 November 2023. [3] The Applicant lodged his application on 21 December 2023. The application was lodged 8 days outside the statutory time limit prescribed by s.394(2) of the Act). [4] The question before me is whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time. [5] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 25 January 2024. Should a further period be granted? [6] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made: “(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and [2024] FWC 362 DECISION -- 1 of 5 -- [2024] FWC 362 2 (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a like position.” [7] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australia stated that: “[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.” [8] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3). [9] For the Applicant’s application to proceed, there must be “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act. Consideration Reason for the delay (s.394(3)(a)) [10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted: “The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” 5 [11] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or -- 2 of 5 -- [2024] FWC 362 3 credible explanation.6 In Giles v Coal Train Australia Pty Ltd, Vice President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.7 [12] The Applicant provided proof of his depression and ADHD through a medical certificate certified by his practitioner. The Applicant also filed a medical certificate which details: • The Applicant went to his practitioner on 24 November 2023 after an altercation with a superior and the Applicant’s antidepressant medication dosage was increased. It was noted that he was depressed, anxious, and agitated. • The Applicant went to his practitioner on 1 December 2023 regarding his ongoing stress related to his dismissal. • The Applicant went to his practitioner on 20 December 2023 to obtain a Centrelink form and that we wanted to pursue the matter to ‘Fair Work’. The Applicant was reported improvement after his anti-depressant medication had been increased. [13] It is not unusual that dismissal or the sudden leaving of a job evokes feelings of depression and anxiety arising from job attachment, length of service, leaving behind former co-workers and financial burdens. These are all issues that are frequently encountered and are generally not exceptional circumstances. [14] The Applicant’s reasons go beyond mere feelings of depression and anxiety. The Applicant had been seeing his doctor on multiple occasions during the 21-day period, and period of delay. I convinced that his depression was to the level that would impact getting his application on time and the GP increasing his medication dosage establishes this as an exceptional factor. [15] This consideration weighs in favour of a finding of exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b)) [16] The Applicant was aware of his dismissal on 22 November 2023 which notified that his employment will end immediately. [17] This consideration does not weigh in favour of a finding of exceptional circumstances. Action taken to dispute the dismissal (s.394(3)(c)) [18] The Applicant did not take any action to dispute the dismissal. [19] This consideration does not weigh in favour of a finding of exceptional circumstances. Prejudice to the employer (s.394(3)(d)) [20] The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral. -- 3 of 5 -- [2024] FWC 362 4 Merits of the Application (s.394(3)(e)) [21] In Kornicki v Telstra-Network Technology Group,8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said: “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.” [22] I consider this factor as a neutral consideration as it is sufficient for the Commission to establish the substantive application was not without merit. Fairness as between the Applicant and other persons in a like position (s.394(3)(f)) [23] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.9 I consider the above factors to be more determinative of whether an extension of time should be granted, and I find this a neutral factor. Conclusion [24] I find that there are exceptional circumstances in considering the above factors, particularly, the Applicant’s extensive medical records. The Commission may consider whether to allow a further period for the application to be made once exceptional circumstances are established. [25] In consideration of the objectives of s.381(2) of the Act, to ensure that a ‘fair go all round’. I exercise my discretion to extend the period for the application to 21 December 2023. My chambers will issue further directions in programming the matter to be determined on its merits. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR771177> -- 4 of 5 -- [2024] FWC 362 5 1 Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14]. 2 [2019] FWC 25. 3 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9]. 4 Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16]. 5 [2018] FWCFB 901 [39]. 6 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963. 7 Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38]. 8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C. 9 Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31]. -- 5 of 5 --