1
Fair Work Act 2009
s.604 - Appeal of decisions
Mitchell Shaw
v
Australia and New Zealand Banking Group Limited T/A ANZ Bank
(C2014/5232)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT SMITH
COMMISSIONER LEWIN
BRISBANE, 15 JANUARY 2015
Appeal against decision [[2014] FWC 3903] of Deputy President Gostencnik at Melbourne
on 12 June 2014 in matter number C2014/4350 - General protections application -
Application lodged out of time - Whether discretion to extend time properly exercised -
Permission to appeal - Whether grounds of appeal attract public interest - Permission to
appeal not granted - Fair Work Act 2009, ss. 365, 366, 604.
DECISION OF VICE PRESIDENT WATSON AND DEPUTY PRESIDENT SMITH
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Deputy President Gostencnik handed down on 12 June 2014. The decision of the Deputy
President concerned a refusal to grant an extension of time for the making of a general
protections application under s.365 of the Fair Work Act 2009 (the Act).
[2] At the hearing of the appeal, Mr Shaw appeared on his own behalf and Ms Manton
appeared on behalf of Australia and New Zealand Banking Group Limited (the ANZ). The
parties relied on written submissions filed in support of their respective positions and made
supplementary oral submissions at the hearing of the application on 19 September 2014.
The Decision under Appeal
[3] Section 366 of the Act requires an application made under s.365 of the Act to be made
within 21 days after the dismissal took effect or within such further period as the Commission
allows under s.366(2). Subsection (2) is as follows:
“(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
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DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 287
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(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.”
[4] Deputy President Gostencnik heard the application for the extension of time and after
discussing each of the factors in s.366(2) by reference to the facts in the matter concluded as
follows:
“[39] Weighing all the matters in s. 366(2) and noting that I give substantial weight
to the first consideration, there seems to me to be little that would establish that
exceptional circumstances warranting a consideration of the exercise of my discretion
to allow a further period within which Mr Shaw can make his application exist. True it
is that Mr Shaw's application is not without merit, but the absence of an acceptable
explanation for the delay of the whole period, bearing in mind that Mr Shaw had the
full 21 days within which to lodge his application but waited until the last day of his
miscalculated time period to act, in my view combine to outweigh merit and other
considerations.
[40] That Mr Shaw took minimal steps to dispute his dismissal and that there is no
real prejudice to the ANZ, does not in my view result in a significant shift of the
balance the other way. In the circumstances, I am not satisfied that there are
exceptional circumstances and so I do not allow a further period within which the
application may be made. Mr Shaw's application, under s. 365 of the Act, is
dismissed.”
Grounds of Appeal
[5] Mr Shaw’s dismissal took effect on 11 April 2014 and he lodged his application with
the Commission on 5 May 2014. The application was received three calendar days after the
expiry of the 21 day period set down under s.366 of the Act but only one business day outside
of the time period.
[6] Mr Shaw raised several grounds of appeal which concerning the following alleged
errors:
The requirement for an explanation of the whole of the period of the delay.
A failure to find that miscalculation of the date was an acceptable explanation for the
delay.
The making of assertions as to Mr Shaw’s motivations and the risk involved in waiting
until the last day to file his application.
The weighting given to the factors contained in s.366 of the Act.
[7] The ANZ submits that the discretion vested in the Deputy President was properly
exercised by him and that there is no error of an appealable nature in the decision of the
Deputy President.
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Permission to Appeal
[8] Permission to appeal may be granted if there is sufficient doubt to warrant its
reconsideration or an injustice may result if permission is not granted.1 If the Commission
considers that it is in the public interest to grant permission to appeal, it is required to grant
permission.2
[9] It is important to note that the decision under appeal is of a discretionary nature.
Usually, such a decision can only be successfully challenged on appeal if it is shown that the
discretion was not exercised correctly.3 It is not open to an appeal bench to substitute its view
on the matters that fell for determination before the Deputy President in the absence of error
of an appealable nature in the decision at first instance. As the High Court said in House v The
King:4
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[10] We have considered the circumstances of this matter and the grounds of appeal
advanced by Mr Shaw. Mr Shaw’s application was filed outside the statutory period for
making the application, and by virtue of the provisions of the Act, Mr Shaw required the
Commission to grant him an extension of time for filing his application. An extension of time
can only be granted in exceptional circumstances.
[11] In another appeal against a decision of the Deputy President in relation to an extension
of time application the Full Bench said: 5
“[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay
in lodgement. The delay is the period beyond the 21 day period specified in
s.394(2)(a) after which the application was lodged—one day in the current case. The
explanation for the delay is the explanation as to why the application was lodged
beyond the 21 day period and goes to circumstances from the time of the dismissal
until the lodgement explaining that delay. An applicant needs to provide a credible
reason for the whole of the period that the application was delayed.
[32] A fair reading of the Deputy President’s decision concerning the delay in
lodgement discloses that his focus was on whether there was an acceptable
explanation for the delay. He considered the explanation offered for the delay until 31
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May 2013—that the Appellant was acting on the basis gleaned from his termination
letter—that his complaint about the dismissal would be addressed by the FWO. Whilst
the Deputy President found that the Appellant consulted the FWO, lodged a complaint
with that office and may have been led into believing that the FWO was the
appropriate body to deal with his complaint about the dismissal, he made no finding in
relation to the explanation for this period. It was unnecessary for him to do so because
he found that when the Appellant was advised by the FWO that it had no jurisdiction
to deal with his complaint in relation to the dismissal, the Appellant was still within
time to lodge his unfair dismissal remedy application and failed to do so. He found
that the Appellant waited until 3 June 2013 to access the Commission’s website and
whilst he completed his application on that day, the Appellant waited until shortly
after 5.00 p.m. on 4 June 2013 to lodge his application. The Deputy President found
that no explanation was given for that delay.
[33] Whilst the misapprehension of the Appellant as to the power of the FWO to deal
with his complaint of unfair dismissal might have explained the non-lodgement of the
application up until 31 May 2013, the Deputy President was right to find that there
was no explanation of the failure of the Appellant to take any further action until 3
June 2013 and then, having completed his application form on that date, the failure to
lodge the application until 4 June 2013.”
[12] This decision makes an important point which we consider deserves re-emphasising.
The delay required to be considered is the period beyond the prescribed 21 day period for
lodging an application. It does not include the period from the date of the dismissal to the end
of the 21 day period. The circumstances from the time of the dismissal must be considered in
order to determine whether there is a reason for the delay beyond the 21 day period and
ultimately whether that reason constitutes exceptional circumstances.
[13] Whether the totality of the circumstances amount to exceptional circumstances is a
value judgment properly described as a discretionary decision. A discretionary decision
cannot be lightly overturned on appeal. It is not relevant to consider the outcome we would
have reached if the matter was determined by us. Other members of this Commission have
previously found that a miscalculation of the twenty one day period did not constitute
exceptional circumstances.6
[14] We have carefully considered the reasons of the Deputy President where he
considered two aspects of the delay and the way he expressed his conclusions. The first aspect
was the impairment of the applicant at the time he was dismissed which led to a
miscalculation. The Deputy President however could not find that this impairment could be
called in aid for the whole of the period leading to the late lodgement. The second aspect was
the stress, shock and confusion which was suffered by the applicant as a consequence of the
termination of his employment.
[15] After taking into account the factors in s.366(2) the Deputy President needed to be
satisfied that there were exceptional circumstances. The Deputy President noted, correctly in
our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss
of employment is a serious event in a person’s life, and such effects are unfortunately not
unusual.
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[16] A fair reading of the entirety of the Deputy President’s decision is that he considered
the delay as the period beyond the 21 day period and considered the reasons for that delay by
reference to the circumstances from the date the dismissal took effect. In our view that is the
correct approach. We are not satisfied that any error in the decision-making process or
otherwise has been established. Further, we do not believe that the decision gives rise to any
public interest considerations sufficient to warrant granting permission to appeal.
Conclusion
[17] For the above reasons, we do not consider that Mr Shaw has established a basis for
granting permission to appeal. The application for permission to appeal is dismissed.
DECISION OF COMMISSIONER LEWIN
[18] This matter is an application for permission to appeal a decision of Deputy President
Gostencnik and if permission is granted an appeal against that decision.
[19] The application is made by Mr Mitchell Shaw and concerns the decision of the Deputy
President made on 17 June 20147 to refuse to allow a further period of one day beyond the
statutory period prescribed for the making of an application by Mr Shaw under s.365 of the
Act.
[20] It is appropriate to provide a brief summary of the background to the filing of the
application under s.365 of the Act. At the time of the termination of employment Mr Shaw
was an employee of Australia and New Zealand Banking Group Limited (ANZ). Mr Shaw
had made an application under s.789FC of the Act for an order to stop bullying, which he
alleged was occurring in his employment with ANZ. ANZ terminated Mr Shaw’s
employment after the application had been made.
[21] The circumstances which lead to the making of the substantive application under s.365
of the Act are set out in the decision of the Deputy President in paragraphs [2] to [7] thereof.
[22] Following the termination of Mr Shaw’s employment, ANZ sought and obtained an
order dismissing Mr Shaw’s anti bullying application on the basis that ANZ had terminated
Mr Shaw’s employment and consequently there was no further risk of Mr Shaw being bullied
at work.
[23] Following the termination of Mr Shaw’s employment, Mr Shaw filed the application
under s.365 of the Act on the ground that the termination of his employment was adverse
action taken by ANZ because he had exercised workplace rights to make complaints and
inquiries in relation to his employment and had made the application to the Commission for
an order to stop the alleged bullying under s.789FC of the Act.
[24] The statutory provisions governing appeal of decisions of the Commission are
contained in s.604 of the Fair Work Act 2009 (Cth) (the Act) and are set out below.
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
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(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act; may appeal the decision,
with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair
dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[25] Mr Shaw’s application was made one day late, in circumstances which will become
clearer in due course below. The circumstances required Mr Shaw to seek a further period of
one day for the acceptance by the Commission of the application made under s.365 of the Act.
[26] The relevant statutory provisions are prescribed by s.366 of the Act and are set out
below:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows undersubsection (2).
(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.”
[27] A helpful summary of jurisprudence affecting the operation of the relevant statutory
provisions is contained in the decision of Vice President Lawler in the case of McConnell v A
& PM Fornataro T/A Tony's Plumbing Service.8 Albeit that there was a quantitative
difference in the time allowed for the making of unfair dismissal applications and s.365
general protection applications at the time of the Vice President’s decision:
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“[50] Both an application for an unfair dismissal remedy under s.394 and an
application for FWA to deal with a general protections dispute involving dismissal
under s.365 are subject to time limits (14 days in the case of a s.394 application and 60
days in the case of a s.365 application). In each case FWA has power to extend time,
expressed in identical terms. For example, s.366(2) provides:
“(2) FWA may allow a further period if FWA 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.”
[51] In each case the power to extend time depends upon FWA being satisfied that
there are “exceptional circumstances”. The introduction in the FW Act of this
“exceptional circumstances” requirement involved a significant limiting of the
discretion to extend time in relation to unfair dismissal claims: prior to the FW Act,
the discretion to extend time for filing an unfair dismissal claim did not require special
circumstances to be shown. In Brodie-Hanns v MTV Publishing Limited 9, the leading
authority on the discretion to extend time for such claims, Marshall J held:
“Special Circumstances are not necessary but the Court must be positively
satisfied that the prescribed period should be extended. The prima facie
position is that the time limit should be complied with unless there is an
acceptable explanation of the delay which makes it equitable to so extend.”
[52] His Honour then listed favour factors that should be considered, which are largely
replicated in s.394(3)(a) to (e) and s.366(2)(a) to (e).
[53] In Cheval Properties Pty Ltd v Smithers a Full Bench of Fair Work Australia
considered the meaning of the expression “exceptional circumstances” in s.394(3) and
held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary
as “forming an exception or unusual instance; unusual; extraordinary.” We can
apprehend no reason for giving the word a meaning other than its ordinary
meaning for the purposes of s.394(3) of the FW Act.”
[54] The ordinary meaning of the expression “exceptional circumstances” was
considered by Justice Rares in Ho v Professional Services Review Committee No 295,
a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour
observed:
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“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen [1989] HCA
39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory
provision which entitled either a parole board or a court to specify a shorter
non-parole period than that required under another section only if it determined
that the circumstances justified that course. They said of the appellant’s
circumstances:
‘Although no one of these factors was exceptional, in combination they may
reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
exceptional or special case where the circumstances justified it (167 CLR at
383, 397).
25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573
[173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ
had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208,
namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective,
and not as a term of art. It describes a circumstance which is such as to form an
exception, which is out of the ordinary course, or unusual, or special, or
uncommon. To be exceptional a circumstance need not be unique, or
unprecedented, or very rare; but it cannot be one that is regularly, or routinely,
or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and
moon appear in the sky everyday and there is nothing exceptional about seeing
them both simultaneously during day time. But an eclipse, whether lunar or
solar, is exceptional, even though it can be predicted, because it is outside the
usual course of events.
27. 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’ in s 106KA(2) 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. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.”
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[55] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).”
[28] The Deputy President addressed the statutory criteria applicable to the determination
of Mr Shaw’s application for an extension of time between paragraphs [12] to [28] of the
decision.
[29] In my view it is necessary to set out at length Deputy President Gostencnik’s
consideration of the delay in filing the application.
“ [2] On 5 May 2014, Mr Shaw lodged with the Commission an application under s.
365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute
concerning an allegation that Mr Shaw’s dismissal occurred in contravention of the
general protections provisions in Part 3-1 of the Act. Mr Shaw’s application was
made outside of the time within which such an application may be made and so Mr
Shaw now seeks to be allowed a further period within which to make his application.
[3] The application about which this decision is concerned has been made in the
context of some history between Mr Shaw and the ANZ, which warrants some
recounting. Prior to his dismissal, Mr Shaw had been concerned for some time that he
was the object of bullying behaviour at work. This concern resulted in Mr Shaw
making an application under section 789FC of the Act for an order to stop bullying.
Prior to Mr Shaw’s dismissal, ANZ had been investigating complaints that had been
made by other employees of the ANZ about conduct and behaviour said to have been
engaged in by Mr Shaw.
[4] ANZ endeavoured to deal with these complaints by attempting to arrange meetings
with Mr Shaw, at which time Mr Shaw was to be given an opportunity to respond to
the allegations. For a variety of reasons, which are not materially relevant for present
purposes, ANZ had not been able to meet with Mr Shaw prior to his dismissal. The
allegations that had been made against Mr Shaw were ultimately set out in writing by
ANZ in a letter, dated 7 March 2014. Mr Shaw was given an opportunity to respond;
an opportunity which he took up in a written response, dated 24 March 2014.
[5] ANZ says that on the basis of interviews with several employees, some of whom
had complained about Mr Shaw’s conduct and behaviour, and Mr Shaw’s written
response, it concluded that Mr Shaw had repeatedly failed to obey lawful and
reasonable directions and that he had engaged in behaviour towards his managers
and colleagues which constituted bullying or which was otherwise inappropriate
behaviour in the workplace. This constituted the reason for dismissal, as set out in the
letter of termination, dated 11 April 2014.
[6] Following Mr Shaw’s dismissal, ANZ applied pursuant to s. 587(3) of the Act for
an order under s. 587(1)(c) dismissing Mr Shaw’s application for an order to stop
bullying. ANZ’s application was made on the ground that Mr Shaw’s application for
an order to stop bullying had no reasonable prospect of success. This was because it
could no longer be said, following the termination of Mr Shaw’s employment, that
there was any risk that Mr Shaw would continue to be bullied at work by an individual
or a group of individuals identified in his application. On 9 May 2014, I granted
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ANZ’s application for dismissal and I dismissed Mr Shaw’s application for an order
to stop bullying.
[7] In his application that is the subject of this decision, Mr Shaw alleges that adverse
action in the form of dismissal that took effect on 11 April 2014 was taken by ANZ in
contravention of s. 340 of the Act, because Mr Shaw had exercised workplace rights.
The workplace rights are constituted by complaints or inquiries made by Mr Shaw in
relation to his employment in or about July 2011 and in or about August 2013, as well
as the application that he made for an order to stop bullying to this Commission on 4
March 2014.
[8] Turning then to the principles that are to be applied in determining whether to
grant an extended period outside of the time prescribed by the statute. Mr Shaw’s
dismissal took effect on 11 April 2014. His application to the Commission for it to deal
with his dismissal-related general protections dispute should have been made within
21 days after the dismissal took effect. That is, by 2 May 2014. The application was
made on 5 May 2014 and was therefore three calendar days outside of the time
prescribed but only one business day outside of the time prescribed.
[9] The Commission may allow a further period within which an application may be
made, but the discretion to allow a further period will only be exercised if the
Commission is satisfied that there are exceptional circumstances taking into account
the reason for the delay, any action taken by Mr Shaw to dispute his dismissal, any
prejudice to ANZ, including prejudice that is caused by the delay, the merits of the
application and fairness as between Mr Shaw and other persons in a similar position.
[10] The matters that must be taken into account, which are set out in s. 366(2) of the
Act, are similar to but not the same as the matters that are to be taken into account in
considering whether there are exceptional circumstances in the context of an unfair
dismissal remedy application identified in s. 394(3) of the Act. It is with that note of
caution that authorities which concern extensions of time about unfair dismissal
matters are to be viewed in their application to the considerations set out in s. 366(2)
of the Act. The statutory context and overall content is similar, but it is not the same.
[11] It is clear from the structure of s. 366(2) of the Act that each of the matters that
are set out therein must be taken into account when assessing whether there are, or
exist, exceptional circumstances. Exceptional circumstances are circumstances that
are out of the ordinary course, unusual, special or uncommon, but those
circumstances need not be unique, unprecedented or even very rare. Before
considering whether to exercise my discretion to allow a further period it is first
necessary, therefore, to consider whether there are in this case exceptional
circumstances that would warrant that consideration.
[12] Turning to the matters that are specifically set out in s. 366(2), and first to the
reason for the delay. The authorities in this area make clear that there must be an
acceptable reason for the delay. Mr Shaw needs to advance a credible reason, or
credible reasons, explaining the whole of the period that the application was delayed.
Mr Shaw advances two broad reasons, which were supplemented in oral argument at
the hearing, as the reason for the delay or explaining the reason for the delay.
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[13] First, Mr Shaw says that when he received the letter of termination on 11 April
2014, he was preoccupied in the preparation of his submissions in support of his
application for an order to stop bullying which was due to be filed by him on 15 April
2014. Mr Shaw says that as a consequence of the bullying behaviour that he had
experienced at ANZ, he had developed a panic disorder, post-traumatic stress
disorder and a major depressive illness. He points to medical reports which were
prepared on 18 February 2014, 25 February 2014 and 30 May 2014 in support of his
contention. It is not disputed by ANZ that he suffers from the medical conditions which
I have just outlined.
[14] Mr Shaw says that the preparation of the submission in support of his application
for a bullying order required him to re-live the experiences of bullying and,
accordingly, his mental state was affected by feelings of anxiety and depression at the
time. Mr Shaw does not provide any medical evidence which supports this contention,
but ANZ did not cross-examine him on that point and I am prepared to accept that, at
the time, there will have been some adverse effects on his mental condition by reason
of the matters that he sets out and which are noted above.
[15] Mr Shaw says that the receipt of the termination letter also caused an immediate
spike in these conditions. He says that although he had anticipated that his
employment might be terminated, the actual termination of his employment was still a
shock. No medical evidence is provided to support this contention, but ANZ did not
cross examine Mr Shaw on this contention and I am prepared to accept that he was in
shock and, by reason of his mental condition, that shock was likely to have had an
adverse effect on his overall mental wellbeing when he received the termination letter.
[16] I take it from the submissions on this point that Mr Shaw makes, that at that time
his cognitive functioning was affected by a combination of having to re-live
unpleasant experiences as an employee of ANZ whilst he was preparing his bullying
order submissions and, combined with the shock of the dismissal, this consequently
was a contributing factor to the delay in making his application within the time
prescribed.
[17] The second point that Mr Shaw makes is that after receiving the letter of
termination from ANZ, he consulted the Commission’s web site and downloaded the
general protections bench book which is available on that site. On reading the bench
book, Mr Shaw noted that there was a 21-day time limit which applied to applications
of this kind. He noted that if the last day on which such an application could be made
fell on a weekend or a public holiday, that he was entitled to lodge the application the
next business day.
[18] Mr Shaw says that he calculated the last day on which an application could be
made by taking the first day following his dismissal and adding to it 21 days. He
therefore concluded that the last day on which he could make his application was
Saturday, 3 May 2014 and consequently concluded that he could make his application
on Monday, 5 May 2014. Mr Shaw’s legal analysis was correct. However, his
arithmetic was not. Mr Shaw says that once he calculated the last day on which his
general protections application could be made, he had no cause to re-visit the issue.
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[19] He says that the error that he made in the calculation was made at a time when
he was fully occupied in the preparation of what he describes as complex and lengthy
submissions to the Commission in relation to his application for a bullying order, the
preparation of which exacerbated his anxiety and depression and that the notification
of the termination of employment also caused a sudden elevation in these conditions.
[20] Mr Shaw says that it was a simple error, which was one that he would not
normally make, but it was made hurriedly in exceptionally stressful circumstances in
which the symptoms of his illness impaired his thought processes. That proposition is
not seriously challenged by ANZ and I accept that it was likely that the exacerbation
at that time of Mr Shaw’s illness impaired his capacity to accurately calculate the
period within which he was required to file his application.
[21] Mr Shaw submitted a medical report dated 30 May 2014, which provides that
Mr Shaw continues to be treated for post-traumatic stress reaction, a major
depressive illness and panic disorders, and that his condition has not improved since
the last report, being 18 February 2014. I have little doubt that the whole of the
episode concerning Mr Shaw’s application for an order to stop bullying, the
preparation of submissions in support of that application, his dismissal from his
employment, dealing with and responding to ANZ’s application that Mr Shaw’s
application for an order to stop bullying be dismissed, was stressful and was likely to
have had an adverse effect on his depressive illness.
[22] Stress, shock and confusion are not uncommon reactions or responses to a
dismissal. In and of themselves, such responses are neither exceptional nor do they
provide an acceptable reason that would explain the whole of the period that an
application was delayed. However, I accept that Mr Shaw’s capacity to accurately
calculate the time frame was impaired by reason of the matters outlined, and if that
were the only matter that I had to take into account, I would readily find that there
was an acceptable explanation for the delay.
[23] Although Mr Shaw relies on his medical condition as an explanation for the
whole of the period of the delay, there is no evidence that his cognitive functioning
was impaired to such a degree as would have the result that he was unable to make
the application within the time prescribed. Indeed, much of Mr Shaw’s conduct during
the period between his dismissal and the date on which he made this application, is
strongly suggestive of the contrary.
[24] First, Mr Shaw was able to compile, complete and file submissions in support of
his application for an order to stop bullying within the time that had been prescribed
by me in directions that I had issued in relation to that application. Second, Mr Shaw
was able to compile, complete and file submissions in opposition to ANZ’s application
for a dismissal of Mr Shaw’s bullying orders application within the time prescribed by
me in directions that I had made in relation to that application. Indeed, he filed those
submissions some four days in advance of the date due. Third, Mr Shaw downloaded
the general protections benchbook, read it and understood what was required of him
in order to make an application within time.
[25] That he was occupied in the preparation of the submissions to which I have just
[2015] FWCFB 287
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referred is not an acceptable reason for the delay and, as I indicated, is suggestive of
a clear capacity to comply with time lines. Mr Shaw says that during the period he
also had family obligations to attend to and that he was the primary carer of his very
young child. I accept that that is so, but those matters are not matters which are
unusual and they are matters which face many other people in the community. They do
not provide an acceptable explanation for the delay.
[26] It seems to me that Mr Shaw simply miscalculated the date on which the
application had to be made and that is the explanation for the delay. As I indicated,
even if I accept, and I do accept, that the error was made in exceptionally stressful
circumstances where symptoms of his illness impaired his thought process, that merely
provides an explanation for the miscalculation and perhaps an explanation for part of
the delay. It does not provide an explanation for Mr Shaw’s action to delay the
application until the last day that he had calculated.
[27] There is no evidence which would suggest that he was prevented from or
seriously impaired, by reason of his depression or his panic disorder, in making the
application at some earlier point. It seems to me that Mr Shaw elected to wait until the
last day on which he thought he could make the application. That he made that
election compounded his earlier error, but it does not provide an acceptable
explanation for the whole of the period of the delay.
[28] As I indicated during my exchange with Mr Shaw earlier in this hearing, a
decision to wait to do something until the last possible moment is fraught with risk. Mr
Shaw had the whole of the 21-day period during which he could have made the
application. He chose to wait until the last day. Mr Shaw elected to take the risk and,
in doing so, he was caught out by his earlier miscalculation. Taken in its totality, Mr
Shaw’s explanation of the reasons for the delay does not, in my view, provide an
acceptable explanation for the whole of the period. The absence of an acceptable
explanation for the whole of the period weighs against Mr Shaw in this matter.”9
[30] In addition to the reasons set out above, the Deputy Presidents said this in conclusion
at paragraph [39] of the decision:
“[39] Weighing all the matters in s. 366(2) and noting that I give substantial weight to
the first consideration, there seems to me to be little that would establish that
exceptional circumstances warranting a consideration of the exercise of my discretion
to allow a further period within which Mr Shaw can make his application exist. True it
is that Mr Shaw's application is not without merit, but the absence of an acceptable
explanation for the delay of the whole period, bearing in mind that Mr Shaw had
the full 21 days within which to lodge his application but waited until the last day of
his miscalculated time period to act, in my view combine to outweigh merit and
other considerations.”
(emphasis added)
[31] The extensive discussion and reasoning above, concerning the delay in filing the
application under s.365 of the Act is the subject of the grounds upon which Mr Shaw seeks
permission to appeal.
[2015] FWCFB 287
14
[32] It will be observed that where the Full Bench of the Commission is satisfied that a
decision subject to appeal raises issues which are of public interest it must grant permission to
appeal. In my judgment the decision raises matters of public interest.
[33] Those matters concern; what is properly characterised as “the delay” for the purposes
of s.366(2)(a) of the Act, the approach to be taken to the consideration of the reason for the
delay in filling an application out of time and the approach of the Commission to
circumstances where an employee seeks a further period for the acceptance of an application
on medical grounds.
[34] In my view, having regard to the nature of a putative application under s.365 of the
Act and the very significant legal consequences which flow from a decision to allow or not
allow acceptance of such an application the above considerations raise matters of broad
principle These matters are of importance beyond the immediate interests of Mr Shaw and
ANZ. I consider them to be matters of general importance to the Commission’s discretionary
power as provided by s.366 of the Act and therefore matters of public interest.
[35] On my reading of the approach taken by the Deputy President it is somewhat uncertain
if the decision proceeds on the basis that “the delay,” which will the subject of consideration
under s.366(a) of the Act, is the period between the end of the period prescribed by the statute
for the filing of the application or the “whole of the period” from the commencement of the
statutory period.
[36] In the case of Ozsoy v Monstamac Industries Pty Ltd10 the Full Bench of the Fair Work
Commission, on appeal, considered an application for an unfair dismissal remedy made out of
time under s.394 of the Act filed and said as follows:
“[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay
in lodgement. The delay is the period beyond the 21 day period specified in
s.394(2)(a) afterwhich the application was lodged—one day in the current case. The
explanation for the delay is the explanation as to why the application was lodged
beyond the 21 day period and goes to circumstances from the time of the dismissal
until the lodgement explaining that delay. An applicant needs to provide a credible
reason for the whole of the period that the application was delayed.”
(emphasis added)
[37] It will be observed that in the discussion of the delay on Mr Shaw’s part in filing the
application under s.365 of the Act, the Deputy President reformulates or reiterates the text of
the Full Bench’s decision in various ways.
[38] In my view, the decision of the Deputy President raises questions concerning the
proper construction of the meaning of the decision of the Full Bench in Ozsoy v Monstamac
Industries Pty Ltd11 and the approach stated therein to an application to allow a further period
of time to file an application under s.365 and s.394 of the Act, as the relevant provisions are
the same, as noted by Vice President Lawler above.
[39] It is therefore appropriate to consider the proper identification of what constitutes “the
delay” which is the subject of s.366(2)(a) of the Act.
[2015] FWCFB 287
15
[40] I most respectfully concur with the decision of the Full Bench as cited and emphasised
above. The delay is the period between the expiry of the statutory period and the filing of the
application.
[41] Moreover, I agree respectfully agree with the Full Bench that the circumstances
between the commencement of the statutory period and its expiry will be relevant when
considering the reason for “the delay”. However, the statutory period does not form a part of
the delay contemplated by the relevant statutory provisions. It seems to me that the last
sentence of paragraph 31 of the Full Bench decision in Ozsoy v Monstamac Industries Pty
Ltd12 is capable of giving rise to uncertainty and has done so in the course of the its reiteration
and reformulation in the Deputy President’s decision above.
[42] In my view, that uncertainty concerns what constitutes “the whole of the period that
the application was delayed” as referred to in the extract from the Full Bench in the decision
above and variously deployed in the Deputy President’s reasons for decision.
[43] Logical consistency with the Full Bench’s decision requires that the period of “the
delay” including what is the “whole of the delay,” must be the time between the end of the
statutory period allowed and the filing of the application.
[44] The relevant meaning of the words the “whole of the delay” in my view is clear. If an
application is lodged 28 days beyond the end of the statutory period for the filing of the
application it is incumbent upon an applicant for an extension of time to explain the reason for
the whole of the 28 day period following the end of the statutory period for the filing of the
relevant application.
[45] While the circumstances which apply during the statutory period for the making of the
an application under s.365 form a relevant consideration, it is inconsistent with the logical
predicate of the Full Bench decision to characterise any part of the statutory period as a part of
the period of “the delay”. Whilst the distinction may seem subtle, in my view, it is a matter of
substance and consequently certainty thereof is in the public interest.
[46] In the present case the Deputy President seems to have accepted that there was a
plausible and seemingly acceptable reason for “part of the delay.” I consider that reference
must be to a part of or the whole of the one day for which the application was delayed.
Otherwise it seems inescapable that the statutory period was conceived of as part of the
“whole of the period of the delay” in the Deputy President’s decision.
[47] A careful reading of the Deputy President’s decision will show that what he
considered “perhaps explained the delay in filing the application by one day,”13 was a mental
illness from which Mr Shaw was suffering at the time of the termination of his employment
by ANZ.
[48] At paragraph [13] of the Deputy President’s decision it will be noted that at the time of
the termination of his employment Mr Shaw was suffering from:
a panic disorder
post traumatic stress
major depression
[2015] FWCFB 287
16
[49] This is a complex triple diagnosis of mental illness, incontrovertibly proven by
medical evidence before the Deputy President. The Deputy President accepted that the
termination of Mr Shaw’s employment was likely to have had “some adverse effects” on Mr
Shaw’s mental condition. The Deputy President elaborated and affirmed this conclusion at
paragraph [15] of his decision.
[50] The Deputy President revisited the mental illness of Mr Shaw at paragraph [21] further
in the affirmative. However, at paragraphs [22] [23] and [24] the Deputy President
comprehends stress, shock and confusion as a response to the termination of Mr Shaw’s
employment as not being uncommon or exceptional and equates stress and anxiety arising
from dismissal with what would normally be experienced by an employee whose employment
is involuntarily terminated. However, the Deputy President concludes that if this was the only
matter to be taken into account he would readily find the mental illness of Mr Shaw to be an
acceptable explanation for the delay. Presumably “the reason for the delay”.
[51] It seems to me that the Deputy President’s observation that a person whose
employment is terminated involuntarily will usually experience a degree of shock and stress is
cogent and widely recognised in the decisions of Courts and Tribunals administering statutory
provisions which operate in relation to termination of employment. However, the reason for
the delay which was advanced by Mr Shaw was not the usual level of such responses. Rather,
Mr Shaw relied upon highly significant and medically proven mental illness. The proven
complex clinical diagnosis and the severity of the mental illness diagnosed, from which Mr
Shaw was suffering when he took steps to file the application under s.365 of the Act, is far
from common. Rather, that medical condition and its effects on the cognitive capacity of an
individual can only be considered an exception, something out of the normal course, not
circumstances which would usually apply to an employee whose employment is involuntarily
terminated.
[52] In my view, the Commission’s approach to the subjectively perceived effect on an
employee of the shock and stress of the involuntary termination of their employment on one
hand and the impact upon persons suffering severe, undisputed, clinically diagnosed mental
illness on the other is a matter of public interest. I consider there is an important distinction
between what might usually be experienced subjectively as stress, shock or anxiety and
objectively proven severe mental illness for the purposes of s.366(2)(a) of the Act, when
considering if there are exceptional circumstances operating in relation to a termination of
employment and the subsequent filing of a relevant application under the Act. I consider the
decision raises important questions concerning the approach to medical evidence which
establishes mental illness in the relevant circumstances.
[53] It is for these reasons I would grant permission to appeal in the public interest. Where
permission to appeal is granted the appeal proceeds by way of rehearing on the evidence
before the Deputy President. The decision of the Deputy President is of a discretionary nature.
The principles governing an appeal against such a decision14 require that the decision will
only be overturned where error is identified.
[54] In my view, with great respect, the Deputy President’s decision is affected by error.
The error is of two kinds or alternatively of two dimensions.
[55] The first error is the approbation and reprobation of the reason for the delay as
comprising exceptional circumstances. It seems to me that having accepted that the
[2015] FWCFB 287
17
exacerbation of Mr Shaw’s mental illness explained a part of the delay, which on my
construction of the relevant delay, following the decision in Ozsoy v Monstamac Industries
Pty Ltd15, is one day, it was an error to then discount that reason because of Mr Shaw’s
actions during the statutory period in attempting to and successfully complying with
directions issued by the Commission in relation to his application made under s.789FC of the
Act.
[56] The second error was to make a finding against the weight of the evidence. Which
finding was that the exacerbating effect of the termination of Mr Shaw’s employment on his
mental illness was in fact to be considered unexceptional and that, contrary to the uncontested
medical diagnosis, Mr Shaw was not affected by mental illness such that this could comprise
the reason for the delay by miscalculation of the date when the application was to be filed
within the statutory period.
[57] Mr Shaw’s conduct, in the Deputy President’s judgment demonstrated unimpeded
competence during the statutory period. However, Mr Shaw gave uncontested evidence that it
was the effect of his mental illness in all the relevant and somewhat unusual circumstances in
which his employment was terminated that caused him to miscalculate the date upon which
the statute required the application under s.365 of the Act to be filed. In my view, in light of
the comprehensive and uncontroversial medical evidence of severe mental illness there was
no basis on which to reject this evidence as the reason for the miscalculation. On the contrary
the evidence was wholly consistent with the medical evidence and was not challenged by
ANZ in cross examination of Mr Shaw.
[58] In my view, the overwhelming weight of the evidence compelled a finding that the
reason for the delay of one day was Mr Shaw’s severe mental illness which caused Mr Shaw
to make an erroneous calculation of the statutory period for the filing of the application. The
exceptional circumstance was not the miscalculation. Rather, the exceptional circumstance
was the severe mental illness from which Mr Shaw was suffering when the miscalculation
was made.
[59] The reason for the delay was an uncontested medical diagnosis of severe mental
illness’ which condition constituted exceptional circumstances to those which an employee
would usually experience when subject to the involuntary termination of their employment.
[60] This severe mental illness was exacerbated by the termination of Mr Shaw’s
employment in the midst of anti bullying proceedings before the Commission which lead to a
miscalculation of the date upon which the statutory period would permit filing of the
application.
[61] The application under s.365 of the Act was a response to ANZ’s termination of Mr
Shaw’s employment in stressful circumstances at a time Mr Shaw suffered from a severe
mental illness which was compounded by the termination of his employment and in respect of
which the s.365 application was filed.
[62] It will have been observed that if the reason for the delay, so characterised, had been
considered by the Deputy President as indicative of exceptional circumstances the other
considerations required by s.366(2) of the Act, as addressed, by the Deputy President,
weighed in favour of a finding of exceptional circumstances or at least not against such a
finding.
[2015] FWCFB 287
18
[63] I would uphold the appeal, quash the decision of the Deputy President and grant the
extension of time having regard to the statutory considerations which must be taken into
account under s.366 of the Act for the following reasons.
[64] The reason for the delay of one day in filing the application was severe mental illness
which led to a miscalculation of the time in which the application was to be filed.
[65] In the unusual circumstances and time available Mr Shaw could not have effectively
disputed his dismissal except in accordance with the Directions by the Commission to
respond to ANZ’s application for the dismissal of his s.789FC application.
[66] There is no prejudice of the relevant kind to ANZ.
[67] Mr Shaw’s application is not without merit.
[68] In my view, a person in a like position will be person’s who’s employment is
terminated by their employer after having made an application for an anti bullying order
under s.789FC of the Act, who is suffering from a medically diagnosed mental illness.
[69] Weighing all of the circumstances in which Mr Shaw’s s.365 application was made,
including the extent of the delay, and taking into account all of the above, I consider there
were exceptional circumstances applicable to the case at the time of the termination of Mr
Shaw’s employment that affected the filing of the application under s.365 of the Act.
Moreover, having therefore found that the discretionary power to allow a further period of one
day for the acceptance of the application arises, I would consider it would be fair and just to
do so.16 I would provide a further period of one day for the acceptance of the s.365
application.
VICE PRESIDENT WATSON
Appearances:
Mr M. Shaw on his own behalf.
Ms K. Manton for Australia and New Zealand Banking Group Limited T/A ANZ Bank.
Hearing details:
2014.
Melbourne.
September 19.
[2015] FWCFB 287
19
Final written submissions:
Mr Shaw on 5 August 2014.
Australia and New Zealand Banking Group Limited T/A ANZ Bank on 4 September 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR559987
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
2 Fair Work Act 2009, s.604.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
5 Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.
6 Appeal by Jonathan Hart [2014] FWCFB 3270.
7 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903.
8 [2011] FWAFB 466 (31 January 2011).
9 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903.
10 [2014] FWCFB 2149.
11 Ibid.
12 Ibid.
13 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3903 at paragraph [26].
14 House v The King (1936) 55 CLR 499.
15 [2014] FWCFB 2149.
16 Fair Work Act 2009 (Cth), s.577.
