1
Fair Work Act
2009
s.394—Unfair dismissal
Luciano Lombardo
v
Department of Education, Employment and Workplace Relations
(U2013/2400)
COMMISSIONER DEEGAN CANBERRA, 18 DECEMBER 2013
Termination of employment - jurisdictional objection - extension of time - no exceptional
circumstances - application dismissed.
[1] On 19 July 2013 an application was made under s.394 of the Fair Work Act 2009 (the
Act) by Mr Luciano Lombardo (the applicant) seeking an unfair dismissal remedy. The
applicant had been dismissed from his employment with the Department of Education,
Employment and Workplace Relations (the respondent) on 22 August 2012.
[2] On 5 August 2013, the respondent filed their response (Form F3) objecting to the
application on the basis that as required by s.394(2) of the Act, at the relevant time, the
application had not been made within 14 days of the date on which the dismissal took effect.
[3] Despite the objection, the respondent participated in a conciliation conference which
took place on 27 August 2013. As the matter was unable to be resolved, it was referred for
formal proceedings.
[4] As the application was not lodged until 19 July 2013, 317 days after the expiration of
the 14 day time limit, it is necessary for a determination to be made as to whether further time
will be allowed for the application to be made pursuant to s.394(2) of the Act. Directions were
issued on 25 September 2013, and amended on 1 October, requiring parties to file
submissions and statements in respect of the extension of time application. The initial
directions noted that the Commission would determine whether a hearing was necessary upon
receipt of the parties’ submissions and evidence.
[5] The applicant and respondent both complied with the amended directions. Having
received the written submissions and supporting documentation I determined that no hearing
was required and the matter would be decided on the basis of the documents filed.
Submissions for the Applicant
[6] The applicant submitted that he had not filed his application within the 14 days of the
dismissal taking effect as he:
[2013] FWC 9957 [Note: An appeal pursuant to s.604 (C2014/3249) was
lodged against this decision - refer to Full Bench decision dated 1 July
2014 [[2014] FWCFB 2288] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2288.htm
[2013] FWC 9957
2
had been occupied and ‘fixated’ on his application lodged with the Administrative
Appeals Tribunal (AAT) on 27 August 2012 to review a Comcare decision and was
thus, unable to devote time to also run an unfair dismissal case;
was disappointed with his union’s handling of his dismissal and dissatisfied with
their lawyer’s advice on his proposed application to the AAT and thus, had to
represent himself in the AAT matter, and would also have had to represent himself in
an unfair dismissal case if an application had been lodged; and
believed the added stress of running the two actions concurrently would have
constituted a danger to his mental health as he was suffering from depression.
[7] The applicant explained that no action had been taken by him to dispute the dismissal
as he was suffering from depression and could not focus on more than one thing at a time but
that as soon as the AAT decision was handed down on 5 July 2013, he was then able to
dispute the dismissal and lodged his unfair dismissal application.
[8] He also submitted that a Canberra Times article, which he believed was drawn from
both the AAT’s conclusion that he did suffer from a psychological condition and the AAT’s
projection of the case, had referred to his termination as an unfair dismissal case and this
reaffirmed his original impression about the situation. As it was now public knowledge, he
felt ‘even more strongly that (he) must defend himself’1.
[9] According to his statement, the applicant suffered a depressive disorder on 2 February
2011 as a result of an administrative decision by the respondent not to give him a redundancy
which disadvantaged him at his workplace. He had not been to work since that date. The
applicant stated that he made the decision to go ahead with the AAT application first, rather
than pursue both applications at the same time, because that issue had been going on since his
application to Comcare in February 2012 and ‘was the more advanced and substantive issue’2.
He further stated ‘if I were to be successful it would not have been appropriate to also seek
compensation for the dismissal’3.
[10] The applicant also produced statements from his GP, Dr Helen Wessell, and his
psychologist, Dr Neil Harrigan, which covered the nature and impact of the applicant’s mental
health issues. Both doctors expressed the opinion that his condition in September 2012 was
such that he could not pursue two cases concurrently.
Submissions for the Respondent
[11] The respondent opposes the extension of time application and submitted that there was
nothing exceptional in relation to the circumstances the applicant was in during the 14 day
time period after his dismissal.
[12] It was put that the applicant was clearly advised in his termination letter of 22 August
20124 of his rights in relation to making an unfair dismissal application and the 14 day
timeframe within which he was required to do so. According to the respondent, the applicant
had made a conscious decision to pursue his AAT application in preference over lodging an
unfair dismissal application. It was contended that the applicant had turned his mind to the
matter of making an unfair dismissal application and had decided not to do so.
[2013] FWC 9957
3
[13] The respondent submitted that the view of Dr Wessell and Dr Harrigan, that the
applicant could not pursue two cases concurrently, should not be accepted as:
Dr Inglis Synnott, an independent consulting psychiatrist to whom the applicant was
referred for a fitness for duty assessment on 16 July 2012, found that the applicant
had no current psychiatric condition and no incapacity for employment;
Dr Synnott reported5 that, during the interview, the applicant “gave what appeared to
be a thoughtful, considered, coherent and organised history- no overt cognitive
impairment”;
there was a lack of understanding by Dr Wessell and Dr Harrigan of the unfair
dismissal claim process, ‘a simple exercise of filling out a form’, and that the
applicant could have lodged the application and then sought an adjournment of his
claim until after the AAT matter had been finalised;
their findings were inconsistent with the applicant’s capacity to focus on the
possibility of his dismissal as the applicant had, in reply to the respondent’s letter of
10 August 20126 directing the applicant to return to work, responded by letter on 15
August 20127 with ‘a cogent and reasoned argument as to why he would not be
returning’.
no explanation was given as to why the applicant could not lodge an unfair dismissal
application at times when he was not dealing with the AAT matter.
[14] According to the respondent, the applicant had ample time to turn his attention to the
issue of his dismissal and lodge the unfair dismissal application. If not in between the
lodgement of the AAT application and the preliminary case conference, a period of 8 days in
which nothing was required to be done and which would render the application within the
required time, then at the following times:
after the AAT matter had been listed for a conference, 169 days after the AAT
application was lodged;
after the conference up until the day of hearing, a further 81 days; or
when the AAT’s decision was reserved and handed down on 5 July 2013, a period of
59 days.
[15] The respondent noted that, at the time he was pursuing his Comcare claim, the
applicant was able to turn his mind to the issue of his imminent dismissal in writing the letter
of 15 August 20128.
[16] It was ultimately the respondent’s position that it was a combination of the AAT’s
decision to reject the applicant’s claim and the publicity generated by the Canberra Times
article, which was put as not being unusual, special or uncommon as AAT proceedings are
public and decisions are routinely published, that motivated him to lodge the unfair dismissal
application. It was submitted that this was after having made a considered decision to forego a
challenge to his dismissal and pursue a claim for compensation with Comcare. The
respondent also noted that after the applicant was notified of his dismissal, there was no
indication by the applicant that he intended to dispute the matter further.
The Legislation
[17] As at the date of the termination of the applicant’s employment s.394 of the Act
provided as follows:
[2013] FWC 9957
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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
[18] I have considered the question of whether a further period should be allowed for the
lodgement of this application in light of those matters set out in s.394(3) of the Act.
[19] The main reason given by the applicant for his delay in filing is his pursuit of a
worker’s compensation claim which was eventually determined by the AAT on 5 July 2013.
He claims that he was ‘fixated’ on that matter and that he was unable to pursue an unfair
dismissal case at the same time. He has submitted in evidence two letters, one from his
general practitioner and one from his psychologist, both advising that he was unable in
September 2012, due to his mental state at that time, to pursue his unfair dismissal case in
addition to his Comcare application. I accept the advice of both doctors that the applicant was,
in September 2012, unable to pursue his unfair dismissal case. I do not accept, however, that
from September 2012 until 19 July 2013 the applicant was incapable of either deciding on
whether to make an unfair dismissal application or lodging such an application. Neither of the
letters from his doctors supplied by the applicant supports such a conclusion.
[20] There is nothing exceptional in the circumstances that applied to the applicant. It is not
unusual for a person whose employment is terminated to pursue or continue with a worker’s
compensation claim. Nor is it exceptional for a person whose employment has been
terminated to be stressed or anxious. While it would be unusual for a person’s mental
condition to prevent him from lodging an unfair dismissal claim for almost a year, there is no
evidence that this was the case in this instance. I note the differing assessments made by the
various doctors of the applicant’s mental state in the weeks leading up to the termination. I
also note that the applicant was clearly capable of responding to the employer about his
reasons for refusing to return to work and to press his workers compensation claim. The
applicant’s submissions make it clear that he took a reasoned decision to pursue his
[2013] FWC 9957
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compensation claim rather than an unfair dismissal claim and only decided to lodge the unfair
dismissal application when his compensation claim both failed and he received publicity he
was concerned about. None of these matters constitute exceptional circumstances.
[21] The applicant was dismissed with effect from 22 August 2012. He took no action to
dispute the dismissal until he lodged this application on 19 July 2013.
[22] I accept that while there may be some prejudice caused to the employer if a further
period were allowed for lodgement I do not consider such prejudice would be sufficient, of
itself, to refuse the application for a further period within which to lodge.
[23] On the limited evidence as to the circumstances of the termination I am unable to
conclude that the application is totally without merit and is therefore a neutral consideration. I
make no further finding on that matter.
[24] 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.
Conclusion
[25] Taking all the matters set out in s.394(3) 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.
[26] The application is dismissed. An order [PR545886] to that effect will be published
separately.
Printed by authority of the Commonwealth Government Printer
Price code C, PR545885
1 Applicant’s outline of submissions.
2 Applicant’s witness statement, paragraph 11.
3 Ibid.
4 Applicant’s witness statement, Attachment B5.
5 Respondent’s outline of submissions, Attachment A.
6 Applicant’s witness statement, Attachment B3.
7 Applicant’s witness statement, Attachment B4.
8 Ibid.
K COMMISSION SEAL OF FAIR AUSTRALIA THE COMMIS LONER
