Adrian Wierzbicki v Westpac Banking Corporation [2024] FWC 3502

1 Fair Work Act 2009 s.394—Unfair dismissal Adrian Wierzbicki v Westpac Banking Corporation (U2024/12995) COMMISSIONER CRAWFORD SYDNEY, 16 DECEMBER 2024 Unfair dismissal application filed out of time – one day late – lack of medical and financial evidence – respondent initially failed to make payments in lieu of notice – no exceptional circumstances – extension of time not granted – application dismissed. Background [1] Adrian Wierzbicki commenced full-time employment with Westpac Banking Corporation (Westpac) on 8 April 2024 as a Customer Relations Consultant. Westpac dismissed Mr Wierzbicki on 8 October 2024 due to alleged unsatisfactory performance. Mr Wierzbicki filed an unfair dismissal application with the Fair Work Commission (Commission) on 30 October 2024 pursuant to s.394 of the Fair Work Act 2009 (FW Act). The application was filed 22 days after Mr Wierzbicki’s dismissal took effect on 8 October 2024. That means Mr Wierzbicki needs an extension of time to file his application. This decision concerns whether there are exceptional circumstances that justify the granting of an extension of time, taking into account that factors listed in s.394(3) of the FW Act. [2] I issued directions for the filing of material and listed a determinative conference/hearing for 10 December 2024 via video. Mr Wierzbicki represented himself at the determinative conference/hearing. Westpac was represented by Jessica Do (Senior Lawyer). The parties agreed with my provisional view that the proceeding should be conducted as a less formal determinative conference. Material filed Mr Wierzbicki [3] Mr Wierzbicki’s unfair dismissal application contains evidence about why he missed the 21-day filing period and why he says he was unfairly dismissed. I marked Mr Wierzbicki’s application Exhibit A1. [2024] FWC 3502 DECISION -- 1 of 7 -- [2024] FWC 3502 2 [4] Mr Wierzbicki provided further evidence about why he missed the 21-day filing deadline in similar emails to the Commission dated 18 and 19 November 2024. I marked the emails Exhibit A2. [5] Mr Wierzbicki provided a medical certificate from Dr Phillip Seeley dated 17 November 2024. The certificate states Mr Wierzbicki is a patient of Dr Seeley and that: “He relates a range of symptoms of insomnia, anxiety, fluctuating appetite and weight loss following his unexpected work dismissal. He attributes these symptoms as a barrier to providing documents in a timely fashion.” I marked the medical certificate Exhibit A3. [6] Mr Wierzbicki provided evidence in response to material filed by Westpac in an email to the Commission dated 1 December 2024. I marked the email Exhibit A4. [7] Mr Wierzbicki provided an email sent to him by Bradley Maxwell (National Manager – Customer Contact Centre) on 26 November 2024. Mr Maxwell’s email confirms Westpac mistakenly calculated Mr Wierzbicki’s notice of termination entitlement and that an additional three weeks of wages had been processed. I marked Mr Maxwell’s email Exhibit A5. [8] Mr Wierzbicki was cross-examined on his evidence during the determinative conference and answered some questions from me. Mr Wierzbicki confirmed that following his dismissal on 8 October 2024 he did not receive medical support until he attended an appointment with Dr Seeley on 17 November 2024. Mr Wierzbicki also confirmed Dr Seeley did not refer him for further treatment in relation to his mental health issues and did not prescribe any medication. [9] Mr Wierzbicki provided oral submissions at the end of the determinative conference. Westpac [10] Westpac relied on a witness statement from Mr Maxwell dated 25 November 2024. Mr Maxwell provided evidence about the performance concerns that led to Mr Wierzbicki’s dismissal, contact Mr Wierzbicki made with Westpac representatives after his dismissal, and about the error with Mr Wierzbicki’s notice of termination entitlement. Mr Maxwell’s statement had a copy of Mr Wierzbicki’s employment contract attached along with two probation review documents relating to Mr Wierzbicki. Mr Maxwell’s statement also had copies of emails exchanged between Mr Wierzbicki and Westpac representatives from 16 to 23 October 2024. I marked Mr Maxwell’s statement, and the attached documents, Exhibit R1. Mr Maxwell was not required for cross-examination. [11] Westpac relied on a witness statement from Hollie Castro (HR Advisor) dated 25 November 2024. Ms Castro provided evidence about Mr Wierzbicki raising a query with Westpac’s human resources team on 21 October 2024 regarding his dismissal. Ms Castro provided evidence about the steps she took to deal with Mr Wierzbicki’s query and attached various emails and screenshots to substantiate what had occurred. I marked Ms Castro’s -- 2 of 7 -- [2024] FWC 3502 3 statement, and the attached documents, Exhibit R2. Ms Castro was not required for cross- examination. [12] Westpac provided written submissions dated 25 November 2024. Ms Do provided oral submissions at the end of the determinative conference. Statutory provisions [13] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether Mr Wierzbicki first became aware of the dismissal after it had taken effect; and (c) any action taken by Mr Wierzbicki 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 Mr Wierzbicki and other persons in a similar position. [14] Each of the above matters must be considered in assessing whether there are exceptional circumstances.1 Consideration – should an extension of time be granted? Reason for the delay [15] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 October 2024. The delay is the period commencing immediately after that time until 30 October 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.2 [16] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.3 [17] Mr Wierzbicki does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Wierzbicki has not provided any reason for any part of the delay.4 [18] Mr Wierzbicki has identified mental health issues and financial distress as the reasons that he missed the 21-day filing period. -- 3 of 7 -- [2024] FWC 3502 4 [19] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.5 The stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.6 [20] I am not satisfied that Mr Wierzbicki has provided sufficient medical evidence to establish that a mental health condition prevented him filing an unfair dismissal application until 30 October 2024. I accept Westpac’s submission that Dr Seeley’s medical certificate only summarises what Mr Wierzbicki apparently told Dr Seeley on 17 November 2024 about symptoms he had been experiencing. No diagnosis is provided by Dr Seeley in the certificate. That is understandable given Dr Seeley would have been required to retrospectively diagnose Mr Wierzbicki as suffering from a condition on 29 and 30 October 2024 based on an assessment of Mr Wierzbicki more than two weeks later, on 17 November 2024. I also accept Westpac’s submission that the fact that Mr Wierzbicki was able to send various emails from 16 to 23 October 2024 disputing his termination payments and dismissal is inconsistent with the proposition he was so mentally unwell that he could not prepare an unfair dismissal application. [21] I consider Mr Wierzbicki presented as a genuine and credible witness during the determinative conference. I have no reason to doubt Mr Wierzbicki’s personal assessment of his mental condition following his dismissal. However, Mr Wierzbicki did not seek medical assistance until 17 November 2024. That has necessarily resulted in there being a lack of medical evidence about his condition on 29 and 30 October 2024. I do not consider I can find that Mr Wierzbicki’s medical condition provides a satisfactory explanation for the delay given the lack of medical evidence. [22] Mr Wierzbicki referred to being able to gather further medical evidence if required during the determinative conference. I do not consider it would be procedurally fair to Westpac if I provided this opportunity to Mr Wierzbicki. I issued directions for the filing of material and Mr Wierzbicki was clearly aware that medical evidence could be relevant to his case. In any event, any further medical evidence would be likely to suffer from the same problem as Dr Seeley’s evidence in that the medical practitioner would have limited scope to make a retrospective diagnosis concerning Mr Wierzbicki’s condition on 29 and 30 October 2024. [23] It is well-established that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from, or seriously impeded in, lodging their unfair dismissal application.7 [24] I do not consider Mr Wierzbicki has provided sufficient evidence to establish that financial hardship prevented him filing an unfair dismissal application within 21 days of his dismissal. I have no documentary evidence about Mr Wierzbicki’s financial circumstances or about any specific challenges he encountered after being dismissed. Unfortunately, dealing with a lack of income following a dismissal is not exceptional. That is hardship that will regularly be encountered following a dismissal. -- 4 of 7 -- [2024] FWC 3502 5 [25] As I stated during the determinative conference, I consider it is extremely regrettable that Westpac did not correctly process Mr Wierzbicki’s payment in lieu of notice following his dismissal. Westpac initially failed to make any payment in lieu of notice. Westpac then erroneously paid one week of notice instead of the legally required amount of four weeks. Westpac’s conduct undoubtedly contributed to Mr Wierzbicki’s financial hardship. Unfortunately, I consider there is merit to Mr Wierzbicki’s submission that he may not have received the additional three weeks of notice if he did not make an unfair dismissal application. Westpac should clearly have done much better. [26] However, I do not consider the delayed payments provide an adequate explanation for why Mr Wierzbicki missed the 21-day deadline. Mr Wierzbicki was able to file his application on 30 October 2024 even though he had still not received payment for a further three weeks in lieu of notice. [27] Mr Wierzbicki also referred to being unaware of the 21-day filing period during the determinative conference. It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.8 [28] I find Mr Wierzbicki does not have an adequate explanation regarding why he missed the 21-day filing period. I find this factor weighs against a finding of exceptional circumstances and the granting of an extension of time. Did Mr Wierzbicki first become aware of the dismissal after it had taken effect? [29] Mr Wierzbicki accepts he was aware of the dismissal when it took effect on 8 October 2024. I find this is a neutral factor. What action was taken by Mr Wierzbicki to dispute the dismissal? [30] I accept that Mr Wierzbicki took action to dispute his dismissal when he submitted a complaint to Westpac’s HR department on 21 October 2024. Mr Wierzbicki elaborated on his complaint in subsequent emails. I find this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time. What is the prejudice to the employer (including prejudice caused by the delay)? [31] Westpac argued it will suffer minor prejudice if an extension of time is granted because it will have to continue incurring costs associated with defending the application. I accept that is a likely outcome, but that will also likely be the case in relation to every employer responding to an unfair dismissal application. I find prejudice to be a neutral factor. What are the merits of the application? [32] It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).9 -- 5 of 7 -- [2024] FWC 3502 6 [33] There is significant factual dispute between the parties regarding whether there were any deficiencies with Mr Wierzbicki’s performance. I am not able to resolve those matters at this stage of the proceeding. I find merits to be a neutral factor. Fairness as between Mr Wierzbicki and other persons in a similar position [34] Westpac argued that this factor weighs against a finding of exceptional circumstances and the granting of an extension of time and referenced a recent case where a Westpac employee was not granted an extension of time in reasonably similar circumstances. I accept there are some similarities between the two cases. However, there are also differences. Each case generally turns on its own facts. I find this to be a neutral factor. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [35] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above. [36] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.10 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.11 The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.12 [37] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that Mr Wierzbicki has cleared the “high hurdle” of establishing exceptional circumstances. I have found that Mr Wierzbicki does not have a satisfactory reason for the delay. I consider this is of more significance in the overall assessment than the action he took to dispute the dismissal. [38] Although I considered granting an extension of time due to Westpac’s failure to pay out Mr Wierzbicki’s correct notice period, I do not consider that would ultimately be an appropriate exercise of the discretion granted by s.394(3) of the FW Act. Conclusion [39] I decline to grant an extension of time for the filing of the application. -- 6 of 7 -- [2024] FWC 3502 7 [40] The application is dismissed. COMMISSIONER Appearances Mr Wierzbicki representing himself. Ms Do for Westpac. Determinative conference: 2024. Sydney (by video via Microsoft Teams). 10 December. Printed by authority of the Commonwealth Government Printer <PR782490> 1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’). 2 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 3 Stogiannidis [39]. 4 Ibid [40]. 5 See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)[2018] FWCFB 1643, [38], [67]. 6 Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9]. 7 Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [22]. 8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]. 9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 10 Ibid [13]. 11 See ibid. 12 Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. -- 7 of 7 --