Albert Coonan v Air Services Australia [2021] FWC 170

1 Fair Work Act 2009 s.394—Unfair dismissal Albert Coonan v Air Services Australia (U2020/14023) COMMISSIONER RIORDAN SYDNEY, 18 JANUARY 2021 Application for an unfair dismissal remedy. [1] On 10 September 2020, Mr Albert Coonan (the Applicant) was dismissed from his employment by Air Services Australia (the Respondent) [2] On 23 October 2020, the Applicant filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act). [3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Fair Work Commission allows. [4] The 21-day statutory period in which the Applicant had to file an unfair dismissal application expired on 1 October 2020. The Application was filed 22 days outside of the statutory time frame. This decision addresses whether the Applicant should be granted a further period in which to lodge his Application. [5] Due to confusion re time zones, poor mobile phone reception and the Applicant undertaking work in a remote location, the matter was not listed for hearing until 15 December 2020. At the Hearing, the Applicant represented themself and the Respondent was represented by Mr Ryan Gould the Respondent’s Legal Counsel. Legislation [6] The relevant section of the Act is section 394. 394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. (2) The application must be made: [2021] FWC 170 DECISION -- 1 of 8 -- [2021] FWC 170 2 (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (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 (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 similar position. A Brief Summary of the Applicant’s Submissions and Evidence [7] On 9 November 2020, the Commission wrote to the Applicant asking him to outline why he believed he had exceptional circumstances within the meaning of section 394(3) of the Act. [8] On 11 November 2020, the Applicant responded to the Commission providing the following reasons: 1. the Applicant claimed he suffered from Post-Traumatic Stress Disorder, Anxiety and Depression which were exacerbated as a result of his termination, and 2. the Applicant alleged that during the 21-day statutory timeframe he was engaged in two other proceedings, namely a Comcare claim and a Family Court matter. The Applicant claimed that the work and stress associated with these proceedings contributed to the delay in his filing of his unfair dismissal application. [9] The Applicant did not provide a witness statement in the matter. However, during the Hearing the Applicant elaborated on his claims outlined above. With respect to the first reason provided by the Applicant, the Applicant stated:  that he has been diagnosed with Post-Traumatic Stress Disorder, Anxiety and Depression by both a psychologist and a psychiatrist, and  that on 10 September 2020, he attempted to commit suicide. [10] With respect to his second reason the Applicant stated:  that he had been focused on preparing for his case before the Family Court on 23 September 2020, and -- 2 of 8 -- [2021] FWC 170 3  that he was also required to produce several documents in support of his Comcare claim by 23 September 2020. [11] In addition, the Applicant stated that he was prevented from filing the Application on time because;  he had caring responsibilities for his daughter after school and on weekends, and  he needed to find a new job which was made more difficult because he is unable to print documents at home. [12] The Applicant provided the Commission with a letter from Dr S M Mostafa Zaman. The letter contained the following passage: “Reportedly by Mr Coonan he was unfairly dismissed from his current job as Fire Officer in Air Services Australia on 03/09/2020 and he was supposed to respond to this decision within 21 days from the date however he was not able to meet deadline. The reasons are: He was highly anxious and depressed (He was already diagnosed with PTSD and mixed anxiety and depression by Mr Paul Fong in 08/2019) triggered by 1) Unfairly dismissal from his job as a fire Officer leading. to engaging with psychologist. (Recorded in our clinic file) 2) Anxiety and frustration around the processing of Comm Care claim and rejection. And finally 3) He had to attend the court matter of sharing custody for his daughter with his ex partner. To my knowledge gained from him and the clinical record I found him to be highly anxious and depressed as a result of all the points described above and this impacted his ability to meet the 21 days deadline.” (extracted as filed) A Brief Summary of the Respondent’s Submissions and Evidence [13] The Respondent contended that the Applicant did not meet the threshold of exceptional circumstances. The Respondent stated that there was no valid reason for the delay noting that the Applicant’s evidence with respect to his mental health should be “taken for what it is”. The Respondent submitted that the letter from the Applicant’s doctor, when taken at its highest, could only explain the delay up until 10 October 2020, as this was the day it was signed. -- 3 of 8 -- [2021] FWC 170 4 [14] The Respondent stated that even though the Application lists that the United Firefighters Union Australia is the Applicant’s representative the Commission should not consider representative error as a reason for the delay. [15] The Respondent submitted that the merits of the case should be examined. The Respondent stated that the Applicant was terminated following a positive result to a drug and alcohol test whilst at work. The Respondent claimed that the Application has little chance of success and that this should weigh against a determination that the Applicant has exceptional circumstances. [16] The Respondent conceded that if the Applicant were to be granted additional time to lodge the Application the Respondent would not be prejudiced. [17] The Respondent stated that the Applicant was provided with the termination letter on 10 September 2020, which was the date the termination took effect. Consideration [18] As the Application was lodged outside of the 21-day timeframe prescribed by section 394(2)(a) of the Act, I must be satisfied that exceptional circumstances exist in order to grant a ‘further period’ for the Applicant to submit his application. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [19] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group [2011] FWAFB 975 (Nulty), held: “[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- -- 4 of 8 -- [2021] FWC 170 5 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.” Section 394(3)(a) - reason for the delay [20] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018]FWCFB 901 (Stogiannidis) noted at [39] “The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly (sic) 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 (sic) the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” [21] The Applicant advanced two reasons for his delay. Firstly, he was otherwise occupied by legal proceedings in other jurisdictions, parental responsibilities and searching for a new job. Secondly, his pre-existing mental health conditions were exasperated by his dismissal leading to an attempt to take his own life. Preoccupation with other legal proceedings, parental responsibilities and searching for a job [22] Taking the Applicant’s submission regarding his various preoccupations at its highest would only provide a reason for delay until 23 September 2020. Further, viewed in isolation, there is nothing ‘out of the ordinary course, unusual, special, or uncommon’ about an Applicant having to prepare for a number of proceedings, look for a job and care for his child simultaneously. [23] If the Applicant were to have advanced these reasons alone, then his circumstances would not be considered exceptional. However, this is not the case. As proscribed by Nulty, when determining exceptional circumstances, the Commission must examine the Applicant’s circumstances holistically. The Applicant’s mental health is also a relevant consideration. Mental health [24] With respect to an applicant’s mental capability to prosecute a claim, Deputy President Sams in Underwood v Terra Firma Pty Ltd [2015] FWC 1387, said at [12]: “While I am sympathetic to the applicant’s mental condition, elevated levels of stress and anxiety consistent with an adjustment disorder do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view this is unexceptional rather than exceptional.” [25] In contrast to the above decision, Deputy President Sams in Scott v Steritech Pty Ltd t/a Steritech [2019] FWC 2970 (Steritech), found that when mental illness becomes -- 5 of 8 -- [2021] FWC 170 6 incapacitating it may be considered a factor that weighs in favour of a finding of exceptional circumstances. The Deputy President said at [95] – [97]: “[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period. [96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal. [97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time” [26] Following the reasoning of Deputy President Sams in the above cases, the Applicant’s attempt to take his own life can only be characterised as a “most severe manifestation of a dismissed employee progressively reaching a point of almost total despair” and thus distinct from the ‘elevated levels of stress and anxiety normally experienced by an employee following the termination of their employment’. The Applicant’s witness evidence with respect to his mental state was corroborated by the letter from the Applicant’s doctor. [27] I note that the Applicant’s letter from his doctor was provided on 10 October 2020. I am satisfied that the Applicant’s mental health, following his termination, was so debilitating that an extension of time passed 1 October 2020 would have been warranted. If the Applicant had submitted his application on 11 or 12 October 2020, than the Applicant would have had a compelling argument for an extension of time. However, the Applicant did not lodge his Application until 23 October 2020. The Applicant was clearly aware of the 21-day statutory deadline based on the comment contained in his doctor’s letter. The Applicant provided no reason why he could not have submitted his application between 10 October 2020 and 23 October 2020. [28] If the Applicant was able to attend the Federal Court of Australia on 23 September 2020, file documentation with Comcare prior to 23 September 2020 and attend his doctor on 10 October 2020, to obtain medical evidence as to why his Application was not lodged prior to 1 October 2020, than the Applicant had the mental capacity to file an unfair dismissal application with the Commission prior to 23 October 2020. -- 6 of 8 -- [2021] FWC 170 7 [29] I find that the Applicant has not provided a credible explanation for the entirety of the delay. This weighs in favour of finding an exceptional circumstance does not exist in this matter. I have taken this into account. Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect [30] The Applicant was aware of his dismissal at the time it took effect. [31] This is a neutral consideration that I have taken into account. Section 394(3)(c) any action taken by the person to dispute the dismissal [32] There is no evidence the Applicant disputed his termination directly with the Respondent. [33] This is a neutral consideration that I have taken into account. Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay) [34] The Respondent conceded that they would not be prejudiced as a result of the Applicant being allowed to file the Application. [33] This is a neutral consideration that I have taken into account. Section 394(3)(e) the merits of the application [35] It would be inappropriate for me to make any findings on this contested matter without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]: “It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.” [36] This is a neutral consideration that I have taken into account. Section 394(3)(f) fairness as between the person and other persons in a similar position [37] Neither the Applicant or the Respondent made any submissions with respect to fairness as between the Applicant and other persons in a similar position. [38] This is a neutral consideration that I have taken into account. Conclusion [39] The Applicant provided sufficient reasons for the Commission to conclude that an exceptional circumstance existed in late September 2020 for the Applicant to be provided -- 7 of 8 -- [2021] FWC 170 8 with an extension of time to lodge his Application. However, these exceptional circumstances did not continue for the entire period between 1 October and 23 October due to the reasons identified in paragraph 27 above. [40] The Applicant has failed to satisfy me that exceptional circumstances existed for the period between 10 September 2020 and 23 October 2020. [41] I find that no extension of time is warranted. [42] The Applicant’s unfair dismissal application is dismissed. [43] I so Order. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR726163> -- 8 of 8 --