1
Fair Work Act
2009
s.394—Unfair dismissal
Joseph Costelloe
v
Origin Energy Ltd T/A Origin Energy
(U2016/13231)
COMMISSIONER BISSETT MELBOURNE, 8 AUGUST 2017
Application for relief from unfair dismissal – extension of time – application dismissed.
[1] Mr Joseph Costelloe was employed by Origin Energy Ltd T/A Origin Energy (Origin
Energy). He resigned his employment on 2 December 2015. On 2 November 2016
Mr Costelloe made an application to the Fair Work Commission (Commission) for relief from
unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[2] Origin Energy made objection to that application on the grounds that it was filed
outside the statutory time limit specified in s.394(2) of the FW Act. The objection was upheld
and the application dismissed in a decision1 of Senior Deputy President Drake. Mr Costelloe
successfully appealed that decision and the matter was remitted to me to hear.
[3] Pursuant to directions issued by the Commission Mr Costelloe filed submissions and
extensive materials. Further, he sought orders to attend directed to a number of individuals,
some of which were issued.
[4] Origin Energy filed submissions in accordance with the directions of the Commission.
[5] At the conclusion of the hearing of the evidence further directions were issued for the
filing of final written submissions.
[6] The material filed by the parties in relation to the extension of time matter are:
1. Mr Costelloe submissions dated 5 May 2017 with attached medical and
counselling records;
2. Mr Costelloe amended submissions dated 8 May 2017 consisting of 85 paragraphs
and extensive associated material (over 500 pages);2
[2017] FWC 3946 [Note: An appeal pursuant to s.604 (C2017/4764) was
lodged against this decision and the order arising from this decision - refer
to Full Bench decision dated 10 October 2017 [[2017] FWCFB 5241] for
result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB5241.htm
https://www.fwc.gov.au/documents/awardsandorders/html/PR575033.htm
[2017] FWC 3946
2
3. Mr Costelloe closing submissions dated 23 June 2017 including screen shots from
MJT Law website and an email trail;
4. Mr Costelloe closing submissions in reply dated 14 July 2017;
5. Origin Energy submissions dated 26 May 2017;
6. Origin Energy closing submissions 7 July 2017.
[7] The following witnesses were called by Mr Costelloe:
Ms Paddy McNee;
Ms Marie Kinshela; and
Dr William Bay.
[8] The following witnesses were called by Order of the Commission at the request of
Mr Costelloe:
Ms Melanie Thorley;
Dr Lidija Coha;
Dr Jane Schouten; and
Dr Gary Larder.
[9] Prior to the hearing I granted permission to Origin Energy to be represented by a
lawyer.3
[10] Mr Costelloe had put to the Commission that it was necessary that I first decide if he
had been dismissed prior to deciding if an extension of time should be granted. Mr Costelloe
was advised by my chambers that this was not a necessary precondition to deciding an
extension of time and that I would not decide that matter. Mr Costelloe was advised that if his
extension of time was granted whether or not he had been dismissed would be determined
with the merits of his application.
Legislation
[11] Section 394 of the FW Act states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a
dismissal if an application or complaint has been made in relation to the dismissal other than
under this Part.
[2017] FWC 3946
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(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a
person under subsection (1) if the FWC is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had
taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay);
and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[12] Section 396 of the FW Act sets out those matters that must be determined prior to
considering the merits of an application. One of those matters is “whether the application was
made within the period required in subsection 394(2)”.
Relevant legal principles
[13] In considering if an extension of time should be granted, s.394(3) of the FW Act
requires that the Commission must be satisfied that there are exceptional circumstances,
taking into account the enumerated factors.
[14] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group
Pty Ltd4 where the Full Bench of the Commission found:
13. In summary, the expression “exceptional circumstances” has its ordinary
meaning and requires consideration of all the circumstances. To be
exceptional, circumstances must be out of the ordinary course, or unusual, or
special, or uncommon but need not be unique, or unprecedented, or very rare.
Circumstances will not be exceptional if they are regularly, or routinely, or
normally encountered. Exceptional circumstances can include a single
exceptional matter, a combination of exceptional factors or a combination of
ordinary factors which, although individually of no particular significance,
when taken together are seen as exceptional. It is not correct to construe
“exceptional circumstances” as being only some unexpected occurrence,
although frequently it will be. Nor is it correct to construe the plural
[2017] FWC 3946
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“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.5
[15] In Brodie-Hanns v MTV Publishing Limited6 Marshall J of the Industrial Relations
Court of Australia found that:
…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.
[16] An applicant for an extension of time must provide a credible reason for the total
period of the delay. In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers7 the
Full Bench heard an appeal from a member of the Commission who at first instance granted
an extension of time for the making of an application for unfair dismissal. The applicant in
that matter was dismissed on 18 December 2009 but did not make her application for unfair
dismissal until 10 February 2010, well outside the 14 day time period specified in the FW
Act8 for making such an application. The Full Bench said:
Ms Smithers does not advance any reason for her delay between 8 January and
21 January 2010 in making her unfair dismissal remedy application to FWA, other
than her expectation that there would be something else from Cheval about her
dismissal after being told of it by them on 18 December 2009. However, her evidence
that she held such an expectation is not credible given that on 18 December 2009 she
asked Cheval for a letter stating the reasons for her dismissal and was told by them
then that it would not be provided.
It is apparent from the Commissioner’s decision that in being satisfied there were
exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure
to provide a credible reason for her delay between 8 and 21 January 2010 in making
her unfair dismissal remedy application to FWA.
The Commissioner’s failure to take into account such a matter is an appealable error of
the type set out in House v The King. Such a matter should have been a material
consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and
whether she was satisfied there were exceptional circumstances.9
[17] Mere ignorance of the law is not a sufficient reason for the delay.10
[18] Representative error may provide grounds for the granting of an extension time but is
not definitive of the question. A distinction should be drawn between a delay caused by the
representative “where the applicant is blameless and delay occasioned by the conduct of the
applicant…[t]he conduct of the applicant is a central consideration in deciding whether
representative error provides an acceptable explanation for the delay…”11
[2017] FWC 3946
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[19] In Coyne v Ansett Transport Industries12 Marshall J noted:
However, as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen
[[1984] FCA 176; (1984) 3 FCR 344] 351, a delay by a solicitor although not
necessarily to be treated as the direct delay of a client is not necessarily a sufficient
basis to excuse the delay in bringing an application. Given the initial delay in the
applicant’s raising the matter of his termination of employment with his solicitors, it is
my view that such inertia would not have enlivened the solicitors to the urgency of the
matter. Therefore, some blame should be visited upon the applicant for the slow
reaction of his solicitors.
[20] Action taken by a person to dispute their dismissal, besides lodging the application for
unfair dismissal, is a relevant consideration.13
[21] It is up to the Respondent to demonstrate that there is prejudice to it in granting an
extension of time. In Brisbane South Regional Health Authority v Taylor14 it was found that a
long delay will give rise to a general presumption of prejudice.15 Once the Respondent
provides evidence of the prejudice it would suffer it is up to the Applicant to show that the
facts do not amount to prejudice.
[22] It is not necessary for the Commission to determine the merits of an application in
making a decision with respect to the grant of an extension of time. Rather:
…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…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 particular, it is undesirable that parties be exposed to the requirement to
present their evidentiary cases twice.16
[23] The determination of the question of fairness requires a consideration of the position
of the applicant “in relation to other applicants employed by the same employer and affected
by the same issue who filed applications in time.”17
[24] I have applied these principles to the application of Mr Costelloe.
[25] Mr Costelloe has provided a number of cases that he says support the grant of an
extension of time in his particular circumstances. I have taken account of the cases he puts
forward.
[26] I would observe however, that beyond the principles outlined in the specific cases
cited above, so much of the decision as to whether or not to grant an extension of time
revolves around the circumstances of a particular case. There will be cases where a long delay
has still resulted in the grant of an extension of time and when a short delay has not; where
prejudice to the employer is a major consideration and where it is not; and where the merits so
clearly favour the grant of the application and where it weighs against such a grant. It is
[2017] FWC 3946
6
unlikely that two sets of factual circumstances will be the same such that much reliance can
be placed on cases that turn on their own facts.
Reason for the delay
[27] In considering the reason for the delay it is instructive to keep in mind that
Mr Costelloe resigned his employment with Origin Energy on 2 December 2015. He made his
application for relief from unfair dismissal to the Commission on 2 November 2016.
[28] Mr Costelloe’s application should have been made by 23 December 2015 for it to be
within time. It was not made for a further 11 months and 7 days. The total period of this delay
needs to be considered.
[29] Mr Costelloe puts forward a multitude of reasons for the delay in making his
application. These include:
That it was predominantly caused by relying “solely on the knowledge advice” of
employment lawyer [Ms Thorley] “with regard to constructive dismissal matters
in concert with symptoms of a psychological injury incurred when following the
misdirection towards a General Protection’s application”;18
Acts of omission by Mr Cruz and Ms Thorley in not advising him that he had
grounds to make a claim for constructive dismissal;19
Pursuing his workers’ compensation claim including seeking legal advice to assist
in this process;20
His psychological illness;
Raising complaints with Members of Parliament;
Seeking alternative employment;
Financial difficulties;
Care for his wife pre and post the birth of their child;
His mother’s deteriorating health and support required;
Researching matters arising from the workers’ compensation claim including
fraud under Workers’ Compensation regulations;
The obligations of a self-represented litigant.21
[30] It is apparent that the key reasons for the delay relied on by Mr Costelloe are the
actions of lawyers Mr Cruz and, in particular, Ms Thorley, his psychological illness and
matters associated with his workers’ compensation claim.
[2017] FWC 3946
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[31] Whilst I accept that the other matters he has detailed may have effected how much
time he had to spare none of them, individually or collectively, adequately explain the delay
in making the application. They should, of course, be considered in conjunction with the other
reasons.
Legal advice
Advice of Ms Melanie Thorley
[32] Ms Melanie Thorley first had brief contact with Mr Costelloe in March 201522
(although Ms Thorely has no memory of the contact). Whilst it is not clear the circumstances
of this advice (it may have been through a community legal centre) it appears that he received
advice that he could not claim constructive dismissal or unfair dismissal at this time as he had
less than six months’ service with Origin Energy (and hence would not qualify under the
FW Act to make such an application).
[33] Ms Thorley had further contact with Mr Costelloe in October 2015. Her advice to
Mr Costelloe at this time was in relation to unpaid entitlements and she provided written
advice in this respect on 20 October 2015.
[34] Ms Thorley said that on 29 October 2015 she had further contact with Mr Costelloe
which was recorded in a file note. That note read:
I called Joe on [04XXXXXX], left a message to call me back, 12.30. Had a few issues
at work. I have to resign, wait for Fair Work Ombudsman. Problem with breach of
privacy. Wants to know the issues behind constructive dismissal. I walked him
through the unfair dismissal application forms and the cost of a fixed fee of $1,500.23
[35] Whilst Ms Thorley could not recall what walking Mr Costelloe through unfair
dismissal application forms entailed, I am satisfied that she did discuss with or provide
information to Mr Costelloe consistent with the file note.
[36] Mr Costelloe suggested that his telephone records from the time24 do not show a
lengthy conversation with Ms Thorley. However, his telephone records only allow a
conclusion that he did not make a call to Ms Thorley from that telephone number that went
for an extensive period. They do not prove conclusively that he did not have a conversation
with Ms Thorley where she talked him through an unfair dismissal form or that she did not
provide such information to him, just that such a call did not originate from his mobile phone
on 29 October 2015.
[37] Ms Thorley had further contact with Mr Costelloe on 2 November 2015 in relation to
attempts by Mr Costelloe to negotiate an exit from Origin Energy.25
[38] On 6 November 2015 Ms Thorley had a conversation with Mr Costelloe in relation to
a possible settlement with Origin Energy and with respect to his Fair Work Ombudsman
(FWO) complaint. In that conversation Ms Thorley’s file note indicates she advised
Mr Costelloe that “there are some other option, [sic] like a general protections application
while you are still an employee or an application to cease bullying.”26
[2017] FWC 3946
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[39] On 9 November 2015 Mr Costelloe emailed Ms Thorley at 8.22am27 and indicated that
he intended making an adverse action claim against Origin Energy and a bullying application
to the Commission. He sought advice as to whether he should wait for some complaints to run
their course before making his applications keeping in mind he also had a matter with the
FWO. Mr Costelloe ended his email with the question “When can I resign?”
[40] Ms Thorley responded that the matter before the FWO was separate to the other
matters, provided advice on a general protections application including the need to
demonstrate adverse action and responded to other matters Mr Costelloe raised. Ms Thorley
ended her email by stating:
Your question on resignation, you can resign at any time, but if you do so you will not
be able to make an GPA-non-dismissal dispute or an application for an order to cease
bullying. It is important that you are tactical about when you are going to resign. If
you wish to make a GPA non dismissal dispute, then you will need to continue
working but if you make it a dismissal dispute then you can resign at any time, but it is
likely you will not get your exit negotiation.28
[41] Mr Costelloe responded that he would like to engage Ms Thorley to assist in a non-
dismissal general protection application (GPA).
[42] On 12 November 2015 Ms Thorley had a conversation with Mr Costelloe about his
chances of success in the general protections application (his chances of winning were less
than his chances of losing).29 A further file note of the same day indicated that Mr Costelloe
had decided not to proceed with the “matter”.30
[43] Ms Thorley gave evidence that she could not recall any other details of telephone
conversations she had with Mr Costelloe beyond those recorded in her file notes.
[44] Ms Thorley said that she never received instructions from Mr Costelloe to file an
application for unfair dismissal.
[45] Mr Costelloe agreed that, when he first contacted Ms Thorley it was in regard to an
overpayment Origin Energy claimed had been made to him and with respect to his leave
entitlements. He said that, while he wanted to discuss so much more, the overpayment and
leave “was the pressing issue”.31 Mr Costelloe agreed that he did not consult Mr Thorley after
his employment with Origin Energy ended on 2 December 2015.32
[46] Mr Costelloe conceded during his evidence that he raised the issue of constructive
dismissal with Ms Thorley around 29 October 201533 and that the term “forced resignation”
was used at this time.34.
[47] Mr Costelloe sought to bring into question the credibility of Ms Thorley’s evidence as
a whole on the grounds that some of her answers might indicate “nerves or a sense of guilt”,
that she was “evasive and non-cooperative” in some of her testimony going to her experience
in providing advice in relation to constructive dismissal, her experience in dealing with clients
suffering from mental illness and her admission that there is not a lot of money to be made in
unfair dismissal cases.35
[2017] FWC 3946
9
[48] I do not accept the submissions of Mr Costelloe as the credibility of Ms Thorley’s
evidence. In my opinion she gave her evidence openly and honestly. She did not claim
expertise she did not have and she was honest in relation to the extent of her memory of
conversations with Mr Costelloe.
[49] It is not in dispute that Mr Costelloe did not have any contact with Ms Thorley after
12 November 2015, prior to the date he resigned from Origin Energy.
[50] Ms Thorley (rightly) stated that she could not comment on the intent of Mr Costelloe’s
telephone calls to her if he did not clearly set them out for her. Whilst Mr Costelloe agreed
that he raised “constructive dismissal” with Ms Thorley, I am satisfied that his instructions to
her were with respect to the overpayment and leave matters and in respect of a non-dismissal
general protections application and that she did provide specific advice as to the effect of a
resignation on such an application.
[51] I am satisfied, on the basis of the file notes provided by Ms Thorley that she did, at
one stage, take Mr Costelloe through unfair dismissal matters. I am not satisfied that
Mr Costelloe sought advice from Ms Thorley, beyond the very general, as to what his options
were should he resign. In any event I am not satisfied that Mr Costelloe at any time after he
resigned sought advice from Ms Thorley as to his options at that time.
[52] Whilst Mr Costelloe sought to apportion blame to Ms Thorley for misdirecting him
because of his psychological illness, Ms Thorley could only give advice on those matters
raised with her by Mr Costelloe. There is no evidence that Ms Thorley had any knowledge of
Mr Costelloe’s “psychological injury”.
[53] I note that Ms Thorley did raise the possibility of Mr Costelloe’s ability to make a
“dismissal dispute” should he resign in her email to him on 9 November 2015.
[54] Beyond Ms Thorley’s file note which indicates Mr Costelloe asked her about
constructive dismissal and she took him through the unfair dismissal form, the flow of
conversations between Ms Thorley and Mr Costelloe, as recorded in her file notes and the
emails between the pair suggest that Mr Costelloe engaged with her on matters associated
with a continuation (at least for a limited period) of his employment: a negotiated mutual
separation possibility and a bullying application or general protections non-dismissal
application. When Mr Costelloe did raise resignation with Ms Thorley her response was
reasonable in the context of the conversations and emails that preceded it.
Advice of Mr Cruz
[55] Mr Costelloe saw Mr Cruz prior to resigning his employment and prior to seeing
Ms Thorley. His consultation with Mr Cruz appears to have been in relation to making a
workers’ compensation claim. There is no evidence that Mr Costelloe sought any information
from Mr Cruz about his employment status or how to deal with what, for him, was becoming
a very difficult work situation.
[2017] FWC 3946
10
[56] Mr Cruz was not called as a witness. His interaction with Mr Costelloe was well
before his resignation and, even on Mr Costelloe’s submissions, there is no hint that
Mr Costelloe sought to engage Mr Cruz in matters related to constructive dismissal or unfair
dismissal.
[57] There is, therefore, no basis to conclude Mr Cruz deliberately or otherwise withheld
information from Mr Costelloe about any remedy he might have if he resigned his
employment or that he advised Mr Costelloe that he could not make an application for unfair
dismissal.36
Medical opinions
Dr Lidija Coha
[58] The evidence of Dr Lidija Coha, Mr Costelloe’s general practitioner (GP), is that
Mr Costelloe had been very stressed in the lead up to his resignation from Origin Energy and
that the stress influenced his ability to make important decisions. She said that Mr Costelloe
attended her for a consultation on 30 November 2015 and told her he had resigned, that he felt
more relaxed, did not need sleeping tablets and wanted to reduce his antidepressant
medication. She did not see him again until 22 February 2016 when he said he felt stressed
again. 37
Dr Jane Schouten
[59] Dr Jane Schouten was Mr Costelloe’s treating psychiatrist. She said that, when she
saw Mr Costelloe on 11 November 2015, he would have been able to comprehend and
communicate “matters of a legal nature” “consistent with a general lay person.”38 She said
that, while Mr Costelloe was having difficulties at work, he was functioning quite well
outside the workplace and that, at this time he was “able to concentrate to do a six page
submission.”39
[60] On 17 February 2016 Dr Schouten provided a report to Dr Coha in which she said she
had seen Mr Costelloe on 9 February 2016 after not having seen him since November 2015.
She said he presented as settled, appropriate and euthymic (meaning not agitated or
anxious40). The letter went on to state that “[o]ver the past three to four months Joe has
stabilised and reports generally experiencing minimal mood and anxiety symptoms although
does at times ruminate about his issues at Origin and the injustice of his situation…”41
Dr Gary Larder
[61] Dr Gary Larder was Mr Costelloe’s treating psychiatrist from 20 September 2016. He
wrote to Dr Coha on 29 September 2016 that Mr Costelloe suffered from a chronic syndrome
of anxiety and depression. He does not make any diagnosis of any psychiatric condition.42
[62] Dr Larder said that it is common for fluctuations in mental state functions and
presentation for a person diagnosed with an adjustment disorder and that the fluctuations can
occur within a day, 24 hours or 48 hours and that there are “a host of variables” that might
explain the fluctuations.43
[2017] FWC 3946
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[63] Dr Larder said that at the time Mr Costelloe started to see him he was expressing
concern with respect to unresolved issues in relation to Origin Energy, workers’ compensation
and, what Dr Larder called, “on-going legal and industrial matters.”44
[64] Whilst I appreciate the diagnoses of Mr Costelloe’s condition and his on-going
treatment, there is nothing in the evidence of his treating doctors that suggests he was not
capable of pursuing an application for unfair dismissal during the period December 2015 to
November 2016. In fact his psychiatrist and GP both observed that he was settled and relaxed
from the time he resigned until about 20 February 2016.
[65] I do not accept Mr Costelloe’s submission with respect to the evidence of
Dr Schouten. There were no inconsistencies in her evidence such that I should disregard it.
Mr Costelloe consulted Dr Schouten from well before his resignation through to mid 2016.
Her evidence with respect to Mr Costelloe is sound and accords with that of Dr Coha.
Other matters
The workers’ compensation claim
[66] Mr Costelloe made submissions as to number of workers’ compensation claims he had
dealt with and the amount of time they absorbed.45
[67] In particular Mr Costelloe says that he became “obsessed” with his workers’
compensation claims in about June 2016.
[68] Whilst Mr Costelloe’s workers compensation took up a degree of his time, the
prosecution of it by him does not explain his failure to make an application for unfair
dismissal.
Ms Paddy McNee
[69] Ms Paddy McNee is Mr Costelloe’s wife. She is the General Manager People and
Culture for a sports club in Brisbane. She has worked in human resources most of her
working life.
[70] Her evidence is that Mr Costelloe was competent and lucid in the period after his
resignation although puts this down, in part, to news of her pregnancy.
[71] Ms McNee said that Mr Costelloe was aware of “constructive dismissal” as a concept
before he resigned his employment and that they had spoken about it.46 Whilst Ms McNee
said she had encouraged Mr Costelloe to seek legal advice about the question47 she agreed
that she had received training in dealing with unfair dismissals, she was aware of the concept
of constructive dismissal, that the law may regard a resignation as a dismissal in certain
circumstances and that she was aware of this before Mr Costelloe resigned his employment.48
[72] Ms McNee however, provides no compelling reason for the delay in Mr Costelloe
making his application for unfair dismissal with the Commission.
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Ms Marie Kinshela
[73] Ms Marie Kinshela is Mr Costelloe’s sister. She gave evidence as to the deterioration
in their mother’s health and the need to have her placed in a nursing home through late 2015
and early 2016. Her evidence went to Mr Costelloe’s role in the family decision-making with
respect to his mother, his concern for her health and his visits to her in the nursing home.
[74] Whilst I appreciate the time taken in visiting his mother on a regular basis and the
demands of the decisions in relation to his mother made on Mr Costelloe and his siblings, this
does not explain the delay in making his application for unfair dismissal.
Dr William Bay
[75] Dr Bay is a doctor practising in a hospital although gave evidence as a friend of
Mr Costelloe. He said that he had known Mr Costelloe for 24 years.
[76] Dr Bay said that Mr Costelloe was consumed by his workers’ compensation claim and
was very disorganised. He said he assisted Mr Costelloe by helping him organise his materials
and by assisting with his submission.
[77] Dr Bay said Mr Costelloe first mentioned constructive dismissal to him in late
January 2017 although agreed that Mr Costelloe had inserted a reference to constructive
dismissal and unfair dismissal into his workers’ compensation draft submission in April 2016.
[78] Dr Bay’s evidence with respect to when Mr Costelloe first raised the issue of
constructive dismissal with him is inconsistent with all of the other evidence given and with
the documentary evidenced in the draft submission in April 2016. He does not provide any
evidence which explains the reason for Mr Costelloe making his application over 11 months
out of time.
Conclusion as to the reason for the delay
[79] It is often presumed that the legislation requires that there be exceptional
circumstances for the reason for the delay in making an application for unfair dismissal. This
is not what the legislation says.
[80] The FW Act requires that, prior to considering an extension of time, the Commission
must be satisfied that there are exceptional circumstances taking into account a number of
factors including the reason for the delay. It is not the case that the reason for the delay must
be exceptional. Having said this, it must be that the reasons given must satisfactorily explain
the delay.
[81] Mr Costelloe presents multiple reasons for the delay in making his application.
[2017] FWC 3946
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Representative error/misdirection
[82] I do not accept that the advice from Ms Thorley (or Mr Cruz to the extent this is
claimed by Mr Costelloe) provides an acceptable reason for the delay in Mr Costelloe making
his application. Firstly, there was no instruction that Mr Costelloe provided to any lawyer he
engaged to make an application to the Commission or any other tribunal or court in relation to
the cessation of his employment with Origin Energy. There is, therefore, no error made by
any lawyer in failing to fulfil his instructions.
[83] Second, Ms Thorley did take Mr Costelloe through the unfair dismissal form in
November 2015. Even if Mr Costelloe is right and she did not take him through the form this
would not alter my overall conclusion based on the weight of evidence.
[84] Third, Ms Thorley gave advice to Mr Costelloe that he could resign at any time and
make a “dismissal dispute”, an invitation Mr Costelloe did not take up.
[85] Fourth, while Ms Thorley advised Mr Costelloe that an “option” was a general
protections application not involving dismissal, there is no evidence she advised him that this
was the only option available to him. I am satisfied that she did alert Mr Costelloe to the
ability to take action in relation to dismissal but did warn him that this may lead to an end to
the negotiations then occurring with respect to a mutual separation from Origin Energy.
[86] Finally, Mr Costelloe, on his own evidence, was aware of constructive dismissal
matters during and after his consultations with Ms Thorley and at least appreciated a link
between constructive dismissal and unfair dismissal in April 2016 when he drafted his
submission with respect to his workers’ compensation claim. His failure to act at this stage
cannot be put down to some error by Ms Thorley.
[87] Whilst with hindsight it is easy to suggest that different advice might have been given,
Ms Thorley’s notes and emails in relation to Mr Costelloe indicate that she responded to
matters raised by Mr Costelloe and gave appropriate advice on those matters.
[88] Mr Costelloe casts the representative error or misdirection as a failure by Ms Thorley
or others to advise him, prior to his decision to resign, that he could or should resign and then
make an application for unfair dismissal in relation to that decision (because of the
circumstances leading up to the decision). Having set on this perceived error by Ms Thorley
and others, Mr Costelloe relies on it to explain 11 months of delay in making his application.
[89] In Ballarat Truck Centre Pty Ltd v Melissa Kerr49 Ms Kerr had consulted a lawyer
about her options. The lawyer in that case,
[18] …initially informed Ms Kerr that he had not had much involvement with
general protections applications and would need to get back to her. At the meeting on
19 January 2011, Mr Francis advised Ms Kerr he would not be making a
s.365 application on her behalf and that it was “best to let sleeping dogs lie” rather
than be “stressed out”. The basis for this advice appears to be that the proceedings
could have aggravated Ms Kerr’s health, and that the most appropriate course of action
would be for her to proceed with her WorkCover claim.50
[2017] FWC 3946
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[90] The Full Bench of the Commission rejected the proposition that, in circumstances
where the lawyer was not instructed to make an application to the Commission (in that case in
relation to a general protections application involving dismissal), representative error could be
found.
[91] The factual circumstances in this matter are not substantively dissimilar. Mr Costelloe
did not give instructions to Ms Thorley or any other lawyer to start proceedings in relation to
the end of his employment with Origin Energy such that representative error could be found
to be a reason for the delay in lodgement. Further, there are no grounds on which I can find
Mr Costelloe was “misdirected” by any lawyer. This is not a case where he was advised to
take a particular course of action, followed that course and it was incorrect. Mr Costelloe was
not advised that there was no action he could take if he resigned his position. In fact, the email
evidence is the opposite of this.
[92] Mr Costelloe’s reliance on the decision of the Commission in Bidinost v Orica
Australia Pty Ltd51 to support his claim for representative error is misplaced. In that matter
(unlike Kerr) the applicant had given clear instructions to his representative that an
application should be lodged with the Commission. He followed it up with his representative
on a substantial number of occasions, eventually discovering that no application had been
made. There is no similarity with the current matter where Mr Costelloe provided no specific
instructions to Ms Thorley.
[93] I am not convinced anything can be drawn from the costs provisions of the FW Act.
[94] I am not satisfied that it can be established that Ms Thorley misdirected Mr Costelloe
such that it was reasonable for him to conclude he could not take action with respect to the
end of his employment or to not investigate the possibility further.
Medical condition
[95] There is nothing in the evidence of any of Mr Costelloe’s doctors that suggests he was
not able to research, understand or complete an application to the Commission with respect to
unfair dismissal within the prescribed period or before 2 November 2016.
[96] In reaching my conclusion with respect to the medical evidence I have taken into
account that Dr Larder, on whom Mr Costelloe places some reliance, did not start to treat
Mr Costelloe until 20 September 2016, nine months after Mr Costelloe resigned. I cannot
draw any conclusions as to Mr Costelloe’s medical condition or its impact on his ability to
make an application prior to September 2016 from the evidence of Dr Larder. At best
Dr Larder provides some explanation for the delay from September to November 2016 (but
not all of it) although does not give evidence Mr Costelloe could not have made an
application for unfair dismissal before he did.
[97] Further, there seems to be no record of any psychiatric treatment (Dr Schouten or
Dr Larder or anyone else) between June 2016 when Dr Schouten’s last notes appear to be
recorded and when Dr Larder first saw Mr Costelloe such that any conclusion could be drawn
as to Mr Costelloe’s inability to complete an application during this period.
[2017] FWC 3946
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[98] I do accept that Mr Costelloe was suffering from stress and anxiety and this most
likely commenced when he was still employed by Origin Energy and continued after his
resignation. I accept his submissions that he was “impaired in some degree during the period
October 29 through November” 2015 which was, in his submission, “the most critical time
when seeking the legal advice on a constructive dismissal” but this does not explain the delay
in making his application for a year until November 2016.
[99] There is no medical explanation for the delay in making his application.
Workers’ compensation claim
[100] Mr Costelloe spent an extensive period of time on his workers’ compensation claim,
researching and drafting submissions and appeals suggesting that he was capable of
undertaking extensive research. From this it can reasonably be inferred that Mr Costelloe
could have, some basic research, found information with respect to applications he could have
made to the Commission in relation to his resignation from Origin Energy.
[101] Mr Costelloe originally submitted that he only discovered that he could make an
application for unfair dismissal when speaking to another ex-Origin Energy employee in
October 2016 but then said that he discovered he could make an application when researching
matters associated with trust and confidence for his workers’ compensation claim. These
submissions however belie the fact that he was aware of constructive dismissal matters in
March 2015, that it was alive for him again in November 2015 and it was a matter he
considered in April 2016 when he included in a draft of a submission on his workers’
compensation claim that he could not make a constructive dismissal/unfair dismissal claim (in
March 2015) because he was in the first six months of his employment.52
[102] Even if I did accept Mr Costelloe’s submission that he became obsessed with his
workers’ compensation claim from June 2016 this does not explain the delay in making his
application for unfair dismissal up to that point in time.
[103] Whilst Mr Costelloe chose to put such effort into his workers’ compensation claim this
does not provide a substantive reason for not making an application for unfair dismissal.
Mr Costelloe chose where to put his efforts. He cannot do so and then say that this choice
explains or is justification for the delay in making his unfair dismissal application.
Other matters
[104] I accept that there were many things happening in Mr Costelloe’s personal life on and
after the time he resigned his employment including the birth of his first child and his
mother’s deteriorating health.
[105] It is, however, not unusual for a person making an application for unfair dismissal to
have other things happening in their lives. Those aspects of life outside employment continue,
no matter the circumstances surrounding the cessation of employment.
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[106] It is reasonable to expect, and the legislature must reasonably have considered it, that a
person could make an application for unfair dismissal with all of the other normal parts of life
continuing on around them. Whilst I appreciate Mr Costelloe may have had a number of
things happening he has not put anything on these matters that explains the delay in making
his application to the Commission.
The totality of the delay
[107] It is not enough just to dismiss each reason given by Mr Costelloe as not providing an
acceptable explanation for the totality of the delay in making his application for unfair
dismissal to the Commission. The reasons must be considered collectively to determine if
they explain the period of the delay. To this extent I accept Mr Costelloe’s submission that
events do not happen in isolation.
[108] However, Mr Costelloe submits that the “critical part of the exceptional circumstances
relates to the period in late October to mid-November 2015. This period had a causative effect
on one of the most significant reasons for the delay in the application”.53
[109] I am not satisfied, on the basis of the evidence of Ms Thorley or Mr Costelloe, that
Ms Thorley “misdirected” Mr Costelloe such that he was incapable of making an application
for unfair dismissal until November 2016. Mr Costelloe did not engage with Ms Thorley after
mid November 2015 but now, in effect, blames her for the lack of action on his part for a
further 11 months.
[110] In the period immediately following his resignation all of the evidence indicates that
Mr Costelloe was engaged, alert and “euthymic”. Despite this, Mr Costelloe took no steps to
seek advice in relation to his resignation.
[111] Mr Costelloe himself conceded that he was in better mental health from
December 2015 to February 2016, a view supported by Dr Coha and Dr Schouten, and that
he could have completed an application for unfair dismissal at that stage.54
[112] Mr Costelloe did nothing after the cessation of his employment to determine if there
was any action he could have taken. He consulted some 15 law firms55 with respect to his
workers’ compensation claim but does not indicate that he asked any of them about the
circumstances of the cessation of his employment and if there was any claim he could make in
that respect.
[113] Mr Costelloe was not incapacitated for the total period of the delay. In fact his
meticulous work and research on his workers’ compensation claim and associated matters
indicates that he was well capable of undertaking research, of filling in forms and of
communicating with relevant government agencies.
[114] For these reasons I do not accept that any advice from Ms Thorley “had a causative
effect” on the reasons for delay or that other matters, in addition to the advice from
Ms Thorley, provides an acceptable reason for the totality of the delay.
[2017] FWC 3946
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Conclusion
[115] Mr Costelloe finds reasons for parts of the delay in making his application to the
Commission. Whilst these various matters might explain some of the periods of delay they do
not, collectively, explain the totality of the period of delay.
[116] Whilst I am satisfied that Mr Costelloe can explain some of the delay I am not
satisfied that he has provided an acceptable reason or reasons for the totality of the period of
the delay in making his application for unfair dismissal.
Whether the person first became aware of the dismissal after it took effect
[117] Mr Costelloe resigned his employment with Origin Energy on 2 December 2015. He
says he did not understand it to be a dismissal until October 2016.
[118] In his written submissions filed after the hearing of evidence Mr Costelloe submits:
Any notion that associates the date of resignation as having any relevance to the
criteria, does not match the language of the section. Granted, that the resignation date
is assumed as the dismissal date for the purpose of the hearing but that appears to
negate any debate on the merits of the substantive matter and for setting the 21 day
post dismissal date [for making an application].56
[119] Mr Costelloe misunderstands the purpose of s.394(2)(b) of the FW Act. Mr Costelloe
resigned on 2 December 2015. He knows that is the date his employment relationship with
Origin Energy ended. It is not the case that he did not understand his employment had ended
until some 11 months later.
[120] A further difficulty in accepting Mr Costelloe’s argument as to when he “discovered”
his resignation was a dismissal is that he had drawn a link between constructive dismissal and
unfair dismissal in at least April 2016 and knew of such a link even earlier when Ms Thorley
spoke to Mr Costelloe about constructive dismissal and talked him through the unfair
dismissal form prior to his resignation. Mr Costelloe himself agreed that, while he did not
recall being walked through the unfair dismissal form by Ms Thorley, there was mention of
the terms “constructive dismissal” and “forced resignation”.57
[121] In Mr Costelloe’s draft submission with respect to his workers’ compensation claim in
April 2016 he wrote, after mention of a case (from the UK):
Such remedy (unfair dismissal/constructive dismissal) was not available to me as I was
in the first 6 months of employment.58
[122] The six months is apparently a reference to advice Mr Costelloe received in
March 2015 that he would not be eligible to make a claim to the Commission for constructive
or unfair dismissal if he left his employment within the first six months. Even if Mr Costelloe
had forgotten such advice he was alive to the link between constructive dismissal and unfair
dismissal in April 2016 when he included it in his workers’ compensation draft submission.
[2017] FWC 3946
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[123] This suggests that Mr Costelloe, on his own evidence, was at least aware that there
was a possibility of dismissal in April 2016.
Action taken to dispute the dismissal
[124] On 2 December 2015 Mr Costelloe sent an email containing his resignation to his
supervisor at Origin Energy. That email said:
Michael
I resign from my position at Origin.
Regards
Joe59
[125] Mr Costelloe provided no more specific details as to the reason for his resignation in
that email or subsequent to that date.
[126] In the lead up to his resignation Mr Costelloe had sought to find some resolution to the
matters between himself and Origin Energy and had entered into discussions with respect to a
mutual separation. Clearly, Mr Costelloe had flagged in some sense issues he was having at
work and sought a means to exit Origin Energy.
[127] Post his resignation Mr Costelloe has sought to pursue his workers’ compensation
claim, that is, he has pursued the manifestation of the issues that arose in the workplace.
[128] It is not clear that Mr Costelloe actively sought to dispute the reason for his
resignation (dismissal) beyond the workers compensation claim after he left Origin Energy.
Prejudice to the employer
[129] Mr Costelloe does not concede any prejudice to the employer caused by the delay in
making his application.
[130] Origin Energy submits that it will be prejudiced by the substantial delay of over
12 months since Mr Costelloe resigned. It submits that the significant delay means that there
is some presumption of prejudice to the employer. This presumption, with the real prejudice
of the substantial delay, is a factor against granting the extension of time.
[131] Origin Energy provided no actual evidence of prejudice it says it suffers that could be
tested. Whilst a lengthy delay might presume prejudice, some indication of that prejudice is
required to be put before the Commission. It was not. For that reason I have not considered
prejudice as a factor weighing either way in determining the matter.
[2017] FWC 3946
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Merits of the application
[132] Mr Costelloe says that he had no choice but to resign his employment in
December 2015. He says that this came about because of an extended course of action by the
employer with respect to mismanagement of workloads, conflicts with his supervisors and an
unwillingness of Origin Energy to deal properly with matters he raised.60
[133] Origin Energy submits that the material before the Commission in this matter in
relation to the delays in making his application indicate that Mr Costelloe had other options
available to him (for example the advice of Ms Thorley with respect to a general protections
application not involving dismissal) to resignation. As such it will be difficult for
Mr Costelloe to show that the employer engaged in a course of conduct that left him with no
choice but to resign.
[134] Origin Energy submits that Mr Costelloe’s application is without merit and that this
should weigh against the grant of the extension of time.
[135] Prior to hearing the application for an extension of time I indicated to the parties that it
was not necessary for me to decide if Mr Costelloe had been dismissed first. This advice was
given as part of the process of dealing with the matter because, to make that decision, would
in effect require a determination of the merits of the application for relief from unfair
dismissal.
[136] This matter is not simple. There is no single particular conduct that Mr Costelloe says
left him with no choice but to resign. Rather, there appears to have been a range of matters
spread across an extended period of time. The merits of the application for unfair dismissal
will be highly contested.
[137] It is not possible in these circumstances and on the material before me to draw any
conclusion with respect to the merits of the application. It is, for this reason, a neutral matter
in my consideration.
Fairness between Mr Costelloe and others in a similar position
[138] Mr Costelloe makes no submissions on this issue.
[139] Origin Energy submits that Mr Costelloe provides no evidence of other employees
who resigned in the same circumstances as he did and who brought an application for relief
from unfair dismissal within the required time period. It submits that this is not a
consideration in the grant of an extension of time.
[140] There are no substantive submissions in respect to this matter. It is, therefore, a neutral
consideration in reaching my decision.
[2017] FWC 3946
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Should I grant an extension of time?
[141] Whilst Mr Costelloe’s confluence of illness, workers compensation, parenthood and
illness of his mother, along with obtaining legal assistance prior to but not after his
resignation are not, collectively, circumstances normally encountered, I am not convinced that
these circumstances are exceptional such that I should consider the exercise of my discretion
to grant an extension of time within which Mr Costelloe may make his application.
[142] I appreciate that Mr Costelloe believes he has a sound case against Origin Energy, and
that he should be allowed to prosecute that case, but time limits have been imposed for
making an application for sound public policy reasons. They must, except in exceptional
circumstances, be met.
[143] My failure to find an acceptable reason for the entire period of the delay in making the
application has weighed heavily against the granting of an extension of time. This has not
been adequately countered by other matters I am required to consider. Taking into account all
of my findings I am not satisfied that exceptional circumstances exist such that I could
consider the grant of an extension of time to Mr Costelloe within which to make his
application for unfair dismissal.
[144] Mr Costelloe’s application for unfair dismissal was therefore not made within the
requisite time period and is dismissed. An order61 to this effect will be issued with this
decision.
COMMISSIONER
Appearances:
J. Costello on his own behalf.
R. O’Neill of counsel for Origin Energy Ltd T/A Origin Energy.
Hearing details:
2017.
Brisbane:
June 5, 6.
THE FAIR WORK MMISSION THE SEAL
[2017] FWC 3946
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Final written submissions:
Applicant: 23 June 2017 and 14 July 2017
Respondent: 7 July 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594897
Endnotes:
1 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWC 214.
2 Exhibit A2. Origin Energy provided a paginated copy of Mr Costelloe’s submissions which was accepted as an accurate
replication of the material he had filed.
3 [2017] FWC 2807.
4 (2011) 203 IR 1.
5 Ibid, [13].
6 (1995) 67 IR 298 p.300.
7 [2010] 197 IR 403.
8 Under the FW Act at that time an application was required to be made within 14 days after the dismissal took effect.
9 [2010] 197 IR 403 paragraphs 16-18.
10 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 paragraph 14.
11 Clark v Ringwood Private Hospital (1997) 74 IR 413 p.419.
12 [1996] IRCA 468 cited in Clark v Ringwood Private Hospital (1997) 74 IR 413.
13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
14 (1996) 186 CLR 541.
15 Ibid, p.556 per McHugh J.
16 Kyvelos v Champion Socks Pty Limited Print T2421, [14].
17 Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38].
18 Applicant closing submissions, 23 June 2017, paragraph 6(h).
19 Ibid, paragraph 55.
20 Ibid, paragraph 6(i).
21 Ibid, paragraph 6(k).
22 Transcript PN1604-1612.
23 Exhibit R3, Transcript PN820.
24 Exhibit A1.
25 Exhibit R9.
26 Exhibit R4.
27 Exhibit R9.
28 Exhibit R8.
29 Exhibit R6
30 Exhibit R7.
31 Transcript PN1469.
[2017] FWC 3946
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32 Transcript PN1570.
33 Transcript PN1483, 1487-9.
34 Transcript PN1568.
35 Costelloe final submissions in reply, 14 July 2017, paragraph 29(d).
36 Transcript PN1516.
37 Transcript PN401, 507.
38 Transcript PN683.
39 Transcript PN685.
40 Transcript PN699-706.
41 Letter dated 17 February 2018 from Dr Schouten to Dr Coha.
42 Transcript PN1209.
43 Transcript PN107.
44 Transcript PN1186.
45 Exhibit A2, pages 474-5.
46 Transcript PN251.
47 Transcript PN249.
48 Transcript PN244-8.
49 [2011] FWAFB 5645.
50 Ibid, [18].
51 [2013] FWC 2089.
52 Exhibit R17.
53 Mr Costelloe’s closing submissions, 23 June 2017, paragraph 54.
54 Transcript PN1833.
55 Exhibit A2, page 473.
56 Mr Costelloe’s closing submissions, 23 June 2017, paragraph 20.
57 Transcript PN1568.
58 Exhibit R17, page 16.
59 Exhibit R21.
60 This is not intended to be a full outline of the reasons Mr Costelloe gives for his resignation.
61 PR595199.
