Amy Tickle v Tricare Labrador Aged Care Pty Ltd [2020] FWC 840

1 Fair Work Act 2009 s.365—General protections Amy Tickle v Tricare Labrador Aged Care Pty Ltd (C2019/7943) DEPUTY PRESIDENT BOYCE SYDNEY, 21 FEBRUARY 2020 Application to deal with contraventions involving dismissal — request for extension of time to file application — combined reasons for delay give rise to exceptional circumstances — extension granted. Introduction [1] On 26 December 2019, Ms Amy Tickle (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act). The Applicant did so by emailing a Form F8 to the Commission’s registry in Brisbane (Application). The Applicant says that her employment with Tricare Labrador Aged Care Pty Ltd (Respondent) was terminated contrary to Part 3-1 of the Act (by the Respondent) on 3 December 2019. [2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect (Statutory Deadline), or in such further time as the Commission may allow.1 The 21-day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect. If the final day of the 21-day period falls on a weekend or on a public holiday, then the prescribed time will be extended until the next business day.2 However, public holidays that fall before or shortly after the Statutory Deadline (as is the case here) do not necessarily extend that deadline. [3] The Applicant acknowledges that she lodged her application 2 days outside of the Statutory Deadline. To be within time, the Applicant should have lodged her Application on or before 24 December 2019. [4] On 20 January 2019, I issued directions in this matter. In particular, the Applicant was to file an outline of submissions, witness statements, and any documents in support of the her out of time application before 3 February 2020. [5] On 5 February 2020 (and despite the Applicant having failed to meet the deadline set by the directions), the Applicant nonetheless filed such materials with my Chambers (noting that I granted an extension of time for her to comply with the directions). [2020] FWC 840 DECISION -- 1 of 7 -- [2020] FWC 840 2 [6] On 13 February 2019, Mr Chris O’Brien (Manager - Human Resources) wrote to my Chambers on behalf of the Respondent. Mr O’Brien informed me that the Respondent had considered the Applicant’s submissions regarding the filing of her Application out of time. The Respondent withdrew its “objection” to the Applicant being granted an extension of time, and accepted that the out of time issue is to be determined in the Respondent’s absence. [7] On the same day, and in light of the Respondent’s position, I determined that the matter be dealt with “on the papers” in lieu of a hearing on the matter. As such, and having had regard to the Applicant’s submissions and evidence to date, I have determined that there are exceptional circumstances within the meaning of s.366 of the Act. Further, by extension, I have determined to exercise my discretion and grant the Applicant an extension of time to file her applicant. My reasons for this decision are as follows. Matters to be taken into account [8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads: “366 Time for application … (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] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4 [10] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd 5 (Nulty) as follows: “[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 -- 2 of 7 -- [2020] FWC 840 3 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 time limit in s.366(1)(a) is not an exceptional circumstance.” (emphasis added) [11] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.6 [12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.7 [12] I now turn to address the particular matters to which regard must be had. Reason for the delay [13] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. [14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired, and ending on the day on which an application is ultimately lodged. [15] That said, it is also 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 credible explanation.8 [16] In summary, the Applicant submits that there were several reasons for the delay, namely: a) the Applicant suffers from bipolar disorder, the symptoms of which were exasperated by the dismissal (i.e. depression and anxiety symptoms). While the Applicant’s symptoms are usually managed with medication and therapy, at the time of the dismissal and until the Application was filed, the Applicant’s usual therapist was unavailable and so there was disruption to her treatment (Medical Reason); b) the Applicant was made aware of the dismissal on the anniversary of her mother’s passing (which the Applicant is still grieving), which compounded the emotional distress that the Applicant was feeling; -- 3 of 7 -- [2020] FWC 840 4 c) the Applicant was relocating to a different residence on 30 December 2019, and needed to use the time to prepare for the move; d) the day for filing was Christmas eve, which is a usually busy time of year for most people, and left the Applicant time-poor; and e) the Applicant spent a considerable amount of time attempting to contest, or at least clarify, the reasons for her dismissal with the Respondent before the Statutory Deadline. The Applicant says that her efforts were met with “hostility” by several employees of the Respondent, and that hampered the Applicant’s ability to clarify the reasons for her dismissal. [17] The Applicant tendered a medical report to support her submissions regarding the Medical Reason. That report provides that, inter alia, the Applicant had been experiencing a worsening of anxiety and distress caused by “recent life events”. The medical report is signed off by the Applicant’s treating medical practitioner, Dr Marije Dalebout, on 28 January 2020. I accept the veracity of that report and that the report supports the Applicant’s assertions as to the degree of the anxiety symptoms she was experiencing (and that those symptoms were worsened when her treatment was disrupted). [18] Individually, none of the reasons the Applicant has put forward qualify as “exceptional”. Indeed, the lead-up to Christmas is busy for most people. Moving from one residence to another is almost always a time-consuming task. And while I cannot help but express the greatest sympathy for those that have lost family members, it is important to recognise that the grief experienced by a person on the anniversary of a family member passing is not, on its own, an unusual circumstance. These are all common occurrences. [19] Moreover, there are numerous decisions of this Commission that do not take the mere existence of mental health issues as a reason for delay that lends to the existence of exceptional circumstances.9 In some cases, the severity of the mental health condition is beyond the degree otherwise encountered by those that suffer the same condition. Further, that extraordinary severity might account for the entire period of a delay.10 Put another way, it is not the existence of the mental health condition that has been found to lean toward an “unusual” or “uncommon” circumstance. It is a feature of that mental illness (such as the severity of the symptoms) that distinguishes an applicant’s experience of that illness as being of a special and distinct class. [20] There is nothing in the medical report to suggest that the Medical Reason put forward by the Applicant is “extraordinary” in the Nulty sense. I therefore do not find the Medical Reason alone lends to a finding of exceptional circumstances. [21] However, what is “unusual” or “uncommon” is the fact that the stressors occasioned upon the Applicant have occurred simultaneously. When taken together, I find that the totality of the circumstances the Applicant faced explains the two-day delay between the expiry of the Statutory Deadline and eventual filing of her Application. That the Applicant is facing these circumstances concurrently is not something experienced in the ordinary course and, in my view, they lean towards a finding of exceptional circumstances. Action taken by the Applicant to dispute the dismissal -- 4 of 7 -- [2020] FWC 840 5 [22] The Applicant submits that she made numerous attempts to discuss the dismissal with the Respondent. The Applicant sought clarification as to the reasons but, by her own account, was met by the Respondent’s unwillingness engage with the Applicant following her dismissal. [23] I take the Applicant’s actions leading up to the Statutory Deadline to demonstrate that she always intended to contest her dismissal. While it did not occur between the Statutory Deadline and the eventual lodgement, I take it that the Applicant only desisted in her attempts to directly dispute her dismissal with the Respondent because the days following the Statutory Deadline were Christmas Day and Boxing Day. [24] I take the Applicant’s constant and consistent effort to contest her dismissal to lean toward a finding of exceptional circumstances. Prejudice to the employer [25] The two-day delay between the Statutory Deadline and the eventual filing of the Application has caused no prejudice to the employer (if only for the fact that the period of delay was marginal and consisted of two public holidays). I take this factor to weigh in favour of a finding of exceptional circumstances. Merits of the application [26] The principles stated Kyvelos v Champion Socks Pty Ltd, 11 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 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 …”.12 [27] While the Applicant asserts she has a meritorious claim, the evidence that the Applicant has filed and the submissions she had made in regard to same has not been tested. Further, the merits of the Applicant’s claim are not a matter that I can resolve as part of this Application. I am not in a position to make findings of fact on the merits of the Applicant’s case and, as such, I find this to be a neutral consideration. -- 5 of 7 -- [2020] FWC 840 6 Fairness as between the Applicant and other persons in a like position [28] No submissions or evidence were made on this point. I find this to be a neutral consideration. Conclusion [29] In view of the foregoing, I find that there are exceptional circumstances to enliven my discretion to grant an extension of time. [30] I exercise my discretion to grant that extension of time to 26 December 2019. [31] The matter will be reallocated to the Commission’s Registry and programmed for conciliation. [32] Orders to this effect will be made in due course. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR716792> 1 Fair Work Act 2009 (Cth) s 366(1) and (2). 2 See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593. 3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 4 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316. 5 [2011] FWAFB 975. 6 [2019] FWCFB 2384 at [16] – [20]. 7 Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J). 8 See: Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963. 9 c.f. Underwood v Terra Firma Pty Ltd t [2015] FWC 1387 (Sams DP) at [12], referring to Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 (Watson -- 6 of 7 -- [2020] FWC 840 7 VP and Smith DP, Lewin C in dissent); Byfield v St Vincent De Paul NT [2020] FWC 524 at [22] (Cross DP); Burke v Techtronic Industries Australia Pty Ltd [2016] FWC 7035 (Dean DP) at [13] to [14]. 10 Scott v Steritech Pty Ltd [2019] FWC 2970 (Sams DP) at [97]. 11 (1995) 67 IR 298. 12 Ibid at 299 to 300. -- 7 of 7 --