1
Fair Work Act
2009
s.394—Unfair dismissal
Ross Kennedy
v
Commonwealth of Australia as represented by the Department of Industry,
Innovation, Climate Change, Science, Research and Tertiary Education
(U2013/13310)
COMMISSIONER DEEGAN CANBERRA, 19 DECEMBER 2013
Application for unfair dismissal remedy - extension of time - no exceptional circumstances -
application dismissed.
[1] This matter arises as a consequence of an application for unfair dismissal remedy
made under s.394 of the Fair Work Act 2009 (the Act) by Mr Ross Kennedy (the applicant) in
respect of the termination of his employment with the Commonwealth of Australia as
represented by the Department of Industry, Innovation, Climate Change, Science, Research
and Tertiary Education (the respondent).
Background
[2] The applicant lodged his application on 6 September 2013 (the current application). In
the application, the applicant stated that the date his dismissal took effect was 26 July 2012.
The application was, therefore, lodged 392 days outside the prescribed statutory time frame.
[3] The current application is the second application for unfair dismissal remedy made by
the applicant in relation to the cessation of his employment with the respondent. The first
application was made on 24 December 2012 (the 2012 application). A conciliation of the
2012 application took place on 31 January 2013, and the 2012 application was discontinued
by the applicant on 5 March 2013. The applicant made an application to have the notice of
discontinuance set aside on 10 July 2013. In a decision1 issued on 22 August 2013 I refused to
set aside the notice of discontinuance.
[4] The respondent declined to participate in a conciliation of the current application.
Directions were issued providing a timetable for the filing of witness statements and
submissions.
[2013] FWC 9932 [Note: An appeal pursuant to s.604 (C2014/2584) was
lodged against this decision - refer to Full Bench decision dated 10 June
2014 [[2014] FWCFB 3530] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB3530.htm
[2013] FWC 9932
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[5] A hearing took place on 14 November 2013. The sole issue to be determined at the
hearing was whether the Fair Work Commission (the Commission) would allow further time
for the application to be made in accordance with s.394(3) of the Act.
The Applicant’s case
[6] The applicant filed a witness statement and was cross-examined at the hearing.
According to the applicant, psychological distress between the termination of his employment
in June 2012 and December 2012 precluded him from lodging the 2012 application within the
required time. The applicant submitted that due to ‘feelings of devastation, illness, distress,
strain and trauma’ he was unable to consider any unfair dismissal issues as he did not have
any ‘head space’ available.2
[7] The applicant identified multiple factors as contributing to his state of mind between
June and December 2012, including distress stemming from the manner in which his
employment with the respondent came to an end and distress from the impact of completing
and submitting two applications for worker’s compensation made in March 2012 and
pursuing those claims throughout 2012. In particular, the applicant indicated that he had
suffered distress as a consequence of errors made in the worker’s compensation process, and
distress brought about as a consequence of the decision by Comcare to deny his claim in July
2012, and then again in October 2012. The applicant also identified distress resulting from the
Comcare process itself, which was, according to the applicant, ‘burdensome, arduous and
demanding’3.
[8] In his statement of evidence, the applicant indicated that the application with Comcare
was difficult to prosecute, and that during the period from July to October 2012, he
considered that any process instigated with the Commission would ‘likely contain errors and
oversights, be burdensome, be of long duration and be difficult to prosecute’4 and would
likely result in the applicant suffering additional distress.
[9] It was the applicant’s evidence that between 27 July 2012 and 2 December 2012, he
was also suffering multiple illnesses including adjustment disorder, anxiety and depression.
To verify the existence of these illnesses, the applicant sought to rely on a letter5 from his
psychologist Ms Carmel O’Sullivan.
[10] Ms O’Sullivan’s letter, dated 7 August 2013, indicated that she had commenced seeing
the applicant on 18 January 2012, and that the applicant had attended her practice 12 times
during 2012. The letter stated that the applicant’s ‘depression and anxiety were severe’ and
that she understood that there was a time limit associated with ‘wrongful dismissal’ and that
the applicant was ‘not capable of attending to this matter within the stated time period’6.
[11] It was the applicant’s evidence that the reason for the delay in lodgement in the period
2 December 2012 to 24 December 2012 was that he had commenced communication with
Senator Humphries office, and was waiting to meet with the Senator on 20 December.
According to the applicant between 20 December and the lodgement of his first application on
24 December, he was considering the Senator’s advice and researching on the Commission’s
website.
[2013] FWC 9932
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[12] The applicant stated that upon attending the Commission’s counter on 24 December,
he first became aware of the existence of ‘constructive dismissal’ and subsequently lodged an
application for unfair dismissal remedy. He stated that up until that time he did not believe he
had any claims for unfair dismissal as he did not associate resignation with dismissal. The
applicant noted that at no time did the respondent disclose to him that he had rights under the
Act, despite having many opportunities to do so. The applicant also noted that his union had
failed to advise him that he could lodge an unfair dismissal application after the cessation of
his employment.
[13] The applicant sought to explain the delay between the lodgement of the notice of
discontinuance in the 2012 application on 5 March 2013 and the application to have the notice
of discontinuance set aside on 10 July 2013, as attributable to a major anxiety disorder and
depressive disorder he suffered during this period, in addition to the adjustment disorder,
depression and psychological distress. He also indicated that he had felt intimidated as a
consequence of the conciliation conference relating to the 2012 application, and suffered
additional distress from having his driver’s licence confiscated and having been placed on a
good behaviour bond.
[14] So far as the period between lodging the application to have the notice of
discontinuance set aside, and the date of lodging the current application is concerned, the
applicant identified his reasons for delay as ‘awaiting advice from FWC, awaiting hearing,
attended hearing and awaited outcome’.
[15] Under cross-examination, the applicant was taken to Attachment 3 to his submissions.
The applicant agreed that an 11-page document with a 12-page attachment was a letter to
Comcare requesting a reconsideration of the decision of 17 July to deny his worker’s
compensation claim. The applicant also agreed that he was able to go through the Comcare
decision and to write a very detailed submission about why he disagreed with the decision and
the basis upon which he sought a review. The applicant acknowledged that the preparation of
the Comcare documents had taken some time, but stated that, as a consequence, he didn’t
have much ‘time, head space, energy or enthusiasm available to lodge an unfair dismissal
application’7. When asked about the exact amount of time the request for reconsideration took
to prepare, the applicant indicated that he had no idea and when pressed stated:
Stop, start, pick it up, drop it, go to Melbourne, do something else, go for a run, go for
a ride on my bike, yes, pick it up again, research, come back to it. You don’t sit there
and write the whole thing from woe to go8
[16] When questioned further, the applicant disagreed that he had been to Melbourne9,
though agreed that whilst preparing the documentation he would have gone for a run10 and a
bike ride11, and been on the internet12. He then subsequently denied that during 17 July and 17
September that he had been using the internet to conduct research for the purposes of
completing the request for reconsideration.13
[17] The applicant was questioned about further interaction that he had with Comcare in
late 2012. He agreed that he had spoken to Mr Burrows of Comcare on 12 October 2013
regarding his request for reconsideration14, and had sent two follow up emails to Mr Burrows
in the same week15. He further agreed that between 27 November 2012 and 9 January 2013 he
[2013] FWC 9932
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engaged in ongoing email correspondence with Comcare, about his claim for worker’s
compensation and acknowledged that during this period he progressed the worker’s
compensation claims that he had instituted in March 2012.16
[18] The applicant agreed that he had filed two applications in the Administrative Appeals
Tribunal (AAT) appealing Comcare’s decision of 21 November, though could not recall the
date that the applications were made17. He agreed that he made the applications without the
assistance of a legal representative.18 The applicant also acknowledged that he had sought
alternative employment and applied for other jobs during 2012, though he could not identify
how many applications he had made. It was his evidence that as a result of his job search
activities he was able to secure employment as a gardener in October 2012.19
[19] According to the applicant, when his employment with the respondent ceased he was
left a ‘shattered, demoralised, exhausted, sick and broken man’20 and that psychological
distress, feelings of devastation, a lack of awareness about constructive dismissal, illness and
financial hardship were the reasons for his delay in lodging an application with the
Commission. It was his contention that an extension of time for lodging the application would
not prejudice the respondent as the respondent is required to keep records, most of the
individuals involved in the applicant’s case are still employed at the respondent, the
respondent has a well-resourced human resources department21 and the respondent also has
the capacity to utilise the assistance of legal representatives22. The applicant submitted that
the merits of his case are strong and in his opinion his case contains a ‘rare blend of
exceptional circumstances that are unlikely to be found elsewhere in other cases’23.
The Respondent’s case
[20] The respondent submitted that the applicant was, for the vast majority of time between
the time that he resigned and the time that he lodged the current application on 6 September
2013, capable of lodging an application for unfair dismissal remedy, and further, that he was
capable of lodging the application within time.24 The respondent acknowledged the letter from
Ms O’Sullivan but contended that, while that letter may be treated as credible evidence for the
proposition that the applicant may not have been able to file within a very short period of time
following the cessation of his employment, it could not explain a delay of 392 days
particularly as it appeared that Ms O’Sullivan’s clinical involvement with the applicant ceased
on 13 August 2012.
[21] It was contended for the respondent that there was evidence that the applicant had
applied for jobs and had successfully obtained employment, initially as a part-time gardener
and then in 2013 as a member of Qantas Ground Services. On the applicant’s own evidence,
the applicant had pursued a worker’s compensation claim with Comcare, instigated a review
of an unfavourable decision, then commenced an AAT claim, lodged an application for unfair
dismissal in December 2012 and participated in the unfair dismissal conciliation process.
[22] The respondent submitted that, given that the applicant had resigned his employment,
there was no obligation on the respondent to disclose to the applicant that he had the ability to
lodge an unfair dismissal application. To the extent that the applicant was seeking to rely on
representative error in failing to advise of the applicant’s ability to lodge an unfair dismissal
[2013] FWC 9932
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application, the respondent submitted that on the basis of the material before the Commission,
there could be no finding of representative error on the part of the union.
[23] It was the submission of the respondent that the reasons for the delay that were put by
the applicant could not account for the entire period of delay and, in combination, the reasons
for the delay do not constitute exceptional circumstances. The applicant’s ability to manage
his affairs and seek employment during the period was indicative of his capacity to lodge an
unfair dismissal application.25
[24] With respect to the other considerations in s.394(3), the respondent noted that the
applicant did not take any positive steps to dispute his dismissal until December 2012 and, as
over one year and two months had elapsed since the applicant’s resignation, the respondent
may suffer prejudice if time were extended as witnesses’ memories may have faded. The
respondent submitted that if an extension of time was granted, this would create unfairness
between the applicant and other persons who have failed to file applications for unfair
dismissal remedies within the prescribed time period and have been denied an extension of
time in circumstances similar to those of the applicant.
The Legislation
[25] At the relevant time, s.394 of the Act provided as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under
Division 4 granting a remedy.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person
under subsection (1) if FWA 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.
Consideration
[2013] FWC 9932
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[26] I have considered whether a further period should be allowed for the lodgement of this
application taking into account those matters set out in s.394(3) of the Act.
[27] The applicant has put forward a number of reasons for the delay in filing his
application. Generally these were connected with his mental state at the time. It is apparent,
however, that he was in a position to file the application by 24 December 2012. Even if I were
to accept that his reasons for not filing before that date constituted exceptional circumstances,
I am unable to accept that the further delay which is attributable to the discontinuance of the
2012 application and the events that followed leading to the lodgement of the current
application, amount to exceptional circumstances.
[28] The 2012 application was made and then discontinued prior to any decision being
made as to whether that application should be accepted despite being lodged some 136 days
after the statutory time for filing had passed. The fact that the applicant chose to discontinue
the 2012 application and then, some 4 months later, attempted to have the discontinuance set
aside does not, in my view, amount to exceptional circumstances. The applicant freely made
the decision to discontinue his application. Nothing in the evidence put forward indicates any
exceptional circumstance attaching to that decision or which explains the further delay until 6
September 2013. The delay was attributable to decisions made by the applicant about the
manner and timing of the applications he wished to make to the Commission. There is nothing
exceptional about the circumstances of those decisions or the context in which they were
taken by the applicant.
[29] Given my finding about the later period it is unnecessary for me to determine whether
or not the situation of the applicant in the period 26 July 2012 until 24 December 2012
amounted to exceptional circumstances. I note, however, that during that period the applicant
had access to the internet, pursued his worker’s compensation claims and appears to have
made a conscious decision not to lodge an unfair dismissal application.
[30] The applicant resigned his employment and was aware of the date of effect. He took
no action to dispute the dismissal until 24 December 2012.
[31] I accept that there may be some prejudice caused to the respondent if further time was
allowed for lodgement as the delay is significant and witnesses may no longer be employed. I
do not consider such prejudice would be sufficient, of itself, to refuse the application for a
further period to lodge.
[32] I am unable to conclude that the application is totally without merit but make no
further finding on this matter.
[33] The matter of fairness as between the applicant and other persons in a similar position
is of little relevance to my decision in the circumstances of this case.
[34] Taking all the matters set out in s.394(3) of the Act into account, I am not satisfied that
there are exceptional circumstances in this matter such that I should allow a further period for
the filing of the application.
[2013] FWC 9932
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[35] The application is dismissed. An order [PR545846] to that effect will be published
separately.
Appearances:
Mr R. Kennedy, on his own behalf.
Ms T. Williams, for the Respondent.
Hearing details:
2013.
Canberra:
November 14.
Printed by authority of the Commonwealth Government Printer
Price code C, PR545845
1 [2013] FWC 6014.
2 Transcript PN321.
3 Transcript PN483.
4 Transcript PN388
5 Exhibit K2.
6 Ibid.
7 Transcript PN517.
8 Transcript PN547.
9 Transcript PN562; PN570.
10 Transcript PN572.
11 Transcript PN571.
12 Transcript PN573.
13 Transcript PN577.
14 Transcript PN640.
15 Transcript PN641.
NORK COMMISSION W K L OF FAIR ****** C THE SEAL OF COMMIS ONER
[2013] FWC 9932
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16 Transcript PN658.
17 Transcript PN681.
18 Transcript PN706.
19 Transcript PN744.
20 Applicant’s outline of submission, at Paragraph 28.
21 Transcript PN870.
22 Transcript PN871
23 Transcript PN871.
24 Transcript PN874.
25 Respondent’s outline of submissions, at Paragraph 41.
