[2018] FWC 2478
The attached document replaces the document previously issued on 4 May 2018.
The citation in paragraph 39 has been corrected to refer to the Full Bench decision [2018]
FWCFB 3893.
Associate to Commissioner Platt
Dated 7 May 2018
1
Fair Work Act 2009
s.365—General protections
Eric Owenhall
v
Aerocare Flight Support Pty Ltd T/A Aerocare
(C2018/791)
COMMISSIONER PLATT ADELAIDE, 4 MAY 2018
Application to deal with contraventions involving dismissal – extension of time – application
dismissed.
Summary
[1] Mr Owenhall has lodged an application pursuant to s.365 of the Fair Work Act
2009 (the Act) alleging that his employment was terminated by Aerocare Pty Ltd (Aerocare
Flight Support Unit Trust) on 23 January 2018 in contravention of the general protections
provisions of the Act.
[2] This application was lodged on 14 February 2018.
[3] Mr Owenhall’s application identified that it was made beyond 21 days from the date of
dismissal and provided the following explanation:
“Due to being unwell and my disability I was unable to attend to lodging of this claim
within the 21 day deadline due on the 12th February 2018. I have provided a medical
certificate dated the 13th February 2018 from Dr Janak Jayatilake for the period from
12 February 2018 to 13 February 2018 who also provided me with prescription on the
day.”
[4] The Respondent filed a form F8A Employer Response on 27 February 2018 which
indicated that the dismissal occurred on 23 January 2018 and raised a jurisdictional objection
on the basis that the application was lodged out of time and that the listed employer was
incorrect.
[5] On 2 March 2018 the parties corresponded with the Commission and consented to the
Respondents being amended to refer to Aerocare Flight Support Pty Ltd. Pursuant to s.586 of
the Act, I allow the Respondent’s name to be amended to Aerocare Flight Support Ltd
(Aerocare).
[6] This decision deals only with the extension of time issue.
[2018] FWC 2478
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 2478
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[7] A conciliation conference was conducted on Monday 26 March 2018. The matter did
not resolve. I note that Mr Owenhall provided a written submission for the purposes of the
conciliation conference, due to the confidential nature of that conference I have not reviewed
this submission.
[8] On 5 April 2018, the Commission corresponded with the parties and advised that the
extension of time issue would be considered at a telephone conference on 17 April 2018.
Information about the extension of time issue and the factors that I am required to take into
account in considering this matter, were provided to the parties. The parties were directed to
provide material in support of their positions by Thursday 12 April 2018.
Submissions
[9] On 12 April, 2018 Mr Owenhall provided a written submission which is relevantly
summarised as follows:
He was advised on 23 January 2018 that he would be dismissed and the dismissal
took effect that day.
His application was due to be made by 13 February 2018 however at the beginning
of February he fell ill from an ongoing medical condition. At the time he was due to
submit the application he was taking medication which had a sedative effect and that
made him lethargic and unable to concentrate or do anything but sleep.
Mr Owenhall saw his doctor, Dr Jayatilake, on 13 February 2018 and was prescribed
antibiotics and a medical certificate. The original medical certificate provided was
amended by Dr Jayatilake to read “he will be unfit to continue his usual occupation
due to his ongoing [medical condition]”.
Mr Owenhall contended he disputed the dismissal at his termination meeting where
he said he will be lodging a claim in Court, he was in the process of supplying the
information to his lawyer and that he thought he had been discriminated against.
Mr Owenhall submitted that Aerocare had not been prejudiced by the delay.
Mr Owenhall submitted he was dismissed not because of alleged deficiencies in his
work performance but that he had suffered a workplace injury and further had been
discriminated against.
Mr Owenhall submitted a medical certificate dated 13 February 2018 from Dr
Jayatilake which stated he was unfit to continue his usual occupation on 12 and 13
February 2018.
A referral letter dated 2018 which detailed his medical history and treatment.
An email from Ms Salemahomed dated 11 April 2018.
A letter from Gallager Bassett dated 22 March 2018 which refers to a workers
compensation claim.
[2018] FWC 2478
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A text message dated 19 January 2018.
A copy of a Visitor Pass in the name of Mr Owenhall.
A copy of an access pass in the name of Mr Owenhall.
A transcript of the termination of employment meeting on 23 January 2018.
[10] On 16 April 2018 Mr Owenhall provided an additional submission which provided:
A copy of a medical certificate dated 16 February 2018 from Dr Armstrong which
indicated that Mr Owenhall was admitted to a hospital for a medical condition and
would not be suitable for work on 16 February 2018.
A discharge summary from the hospital dated 16 February 2018 detailing a medical
diagnosis.
[11] I note that this information relates to event which occurred after the application had
been lodged. I received his material over the objection from Aerocare on the basis that the
material was provided late.
[12] On 12 April 2018 Aerocare provided a written submission which is summarised as
follows:
Mr Owenhall was employed as a Airline Service Agent on 8 November 2017 and
was dismissed on 23 January 2018 during his probationary period.
The dismissal took effect on 23 January 2018.
The application was filed on 14 February 2018 and was thus one day out of time.
The medical certificate dated 13 February 2018 did not establish any incapacity to
lodge an application, only that Mr Owenhall was unfit for work on 12 and 13
February 2018.
Mr Owenhall took no other action to dispute the dismissal.
Prejudice was a neutral factor.
The merits was a neutral factor.
That no exceptional circumstances had been demonstrated and the extension of time
should not be granted.
[13] On 16 April 2018 Aerocare provided a list of authorities which it relied upon.
[14] On 17 April 2018 Mr Owenhall provided a further written submission which (in so far
as the material is relevant to the jurisdictional issue) states:
On 1 February 2018 he had a relapse of his medical condition.
[2018] FWC 2478
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He self-medicated Phenergan, steroids and antibiotics.
On 13 February 2018 he saw Dr Jayatilake.
He was unable to attend to lodging the application with the Commission on 13
February 2018.
On 14 February 2018 he was able to ‘just’ complete the application and email same
to the Commission.
On 16 February 2018 Mr Owenhall became unwell and attended a hospital.
Mr Owenhall contended his circumstances was exceptional and referred to a number
of authorities.
Mr Owenhall sought that his name be supressed from any decision pursuant to s.594
of the Act and that the medical evidence also be suppressed.
[15] A hearing was conducted by way of telephone conference on 17 April 2018. A sound
file record of the telephone conference was kept. Mr Owenhall represented himself. Aerocare
was represented by Ms Lynette Vanderstoep with Mr Greg Shelley who were both employees
of Aerocare.
[16] Mr Owenhall’s position is summarised as follows:
He lives with his mother and step-brother.
After he was dismissed he downloaded the application form the next day.
He was aware of the 21 day time limit.
He spoke to 3 to 4 lawyers in the first week after the dismissal in relation to his
workers compensation claim and also the Fair Work Commission Helpline.
Mr Owenhall suffered from a chronic medical condition. Between 1 and 13 February
2018 his medical condition reoccurred, his medication had a sedative effect on him
which made him lethargic and tired.
[17] At the conference on 17 April 2018 Mr Owenhall was invited to seek an adjournment
so that he could provide further medical evidence which “details the impact of Mr Ownehall’s
medical condition, treatment and/or medication, on his capacity to lodge an unfair dismissal
application between 23 January 2018 and 14 February 2018.” Mr Owenhall requested and
was granted an adjournment until 27 April 2018 to provide this information. The hearing was
adjourned until 1 May 2018.
[18] On 30 April 2018 Mr Owenhall submitted a letter from Dr Bruce Tate dated 27 April
2018 confirming that the medication taken by Mr Owenhall is a sedative drug and that Mr
Owenhall’s medical condition is ongoing and its severity fluctuates over time. At the present
time his condition was being controlled by topical steroids and moisturisers.
[2018] FWC 2478
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[19] Mr Owenhall also submitted a letter from Dr Waechter dated 23 April 2018 which
stated Mr Owenhall was a patient of his clinic and that he took a named medication for his
medical condition, that the medication has a sedative effect and ‘This had made it difficult to
pursue his unfair dismissal claim”.
[20] On 1 May 2018 Mr Owenhall gave sworn evidence, which reinforced the material
contained in his submissions. He was cross examined by Ms Vanderstoep.
[21] Aerocare reiterated its submissions and contended the Mr Owenhall’s circumstances
were not exceptional.
Confidential evidence
[22] Section 594 of the Act permits the making of an order prohibiting or restricting
publication of evidence, names and addresses, matters contained in documents or received in
evidence of the whole or part of any decision.
[23] Section 594 of the Act relevantly states:
(1) The FWC may make an order prohibiting or restricting the publication of the
following in relation to a matter before the FWC (whether or not the FWC holds a
hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so
because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in
relation to the matter;
(c) matters contained in documents lodged with the FWC or received in
evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC
for consideration in an annual wage review (see subsection 289(2)).
[24] Mr Owenhall contends that the identification of his name in any published decision
may adversely impact on his future employment opportunities and also that the publication of
his medical condition may also have an adverse consequence. Aerocare has adopted a neutral
position.
[25] The principles of open justice were considered by the Commission in Bowker and Ors
v DP World Melbourne Ltd & Ors [2014] FWCFB 9227.
[26] The decision of Vice President Hatcher in Amie Mac v Bank of Queensland & Ors1
dealt with a request for the de-identification of parties to a matter. In that decision Vice
President Hatcher referred to decision of in Seven Network (Operations) Limited & Ors v
James Warburton (No 1) [2011] NSWSC 385 which identified the main features of the open
justice principle as follows:
[2018] FWC 2478
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“[2] The reason for the principle of open justice is that, if the proceedings of courts of
justice are fully exposed to public and professional scrutiny and criticism, and
interested observers are able to follow and comprehend the evidence, the submissions
and the reasons for judgment, then the public administration of justice will be
enhanced and confidence in the integrity and independence of the courts will be
maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs
J). Not only does the conduct of proceedings publicly and in open view assist in
removing doubts and misapprehensions about the operation of the system, but it also
limits the opportunity for abuse and injustice by those involved in the process, by
making them publicly accountable. Equally, public scrutiny operates as a disincentive
to false allegations and as a powerful incentive to honest evidence: J v L& A Services
Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons,
the principle of open justice is not only an indispensable feature of our system, but it is
also a healthy feature.
[3] There are limited exceptions to the principle of open justice. Where those
exceptions apply, the courts will restrict access where appropriate. But departure from
the principle of open justice is only justified where observance of the principle would
in fact frustrate the administration of justice by unfairly damaging some material
private or public interest. To that end, an order restricting the public availability of
information will only be made if it is really necessary to secure the proper
administration of justice. Such an order must be clear in its terms and do no more than
is necessary to achieve the due administration of justice. Furthermore, there must be
some material before the Court upon which it can reasonably reach the conclusion that
it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police
Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona
Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91
(Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024
(Einstein J).
[4] The consequence of the principle of open justice is that embarrassing, damaging
and inconvenient facts may occasionally come to light. That consideration has never
been regarded as a reason in itself for the suppression of evidence or for an order
restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers
Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142
(Kirby P). Equally, it is common for sensitive issues to be litigated and for information
that is extremely personal or confidential to be disclosed. This is sometimes an
unavoidable by-product, and a necessary consequence, of the application of the
principle.
[5] To avoid the consequences that sometimes follow from the conduct of proceedings
publicly and in open view, parties can, and frequently do, choose to litigate their
disputes by private commercial arbitration. But if they choose to litigate in court, they
must accept the necessity for the Court to conduct its proceedings openly and with
transparency.” [emphasis added]
[27] Vice President Hatcher considered that those principles are equally applicable to this
Commission which conducts its processes in a quasi-judicial fashion, and I adopt that
approach in this matter.
[2018] FWC 2478
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[28] I accept that Mr Owenhall is concerned that the publication of his name in this
decision could impact on his future employment opportunities. In my view this concern is
insufficient to enliven an exception to the open justice principle. If that were the case then
almost all applications to the Commission could be subject to confidentiality orders.
[29] With respect to the disclosure of the Mr Owenhall’s medical condition, I have
determined that it is not necessary to describe his medical condition in order to deal with the
application in an open way and I do not believe a confidentiality order is therefore required.
The key issue in relation to Mr Owenhall’s medical condition is the impact of the medication
he took on his capacity to lodge his application within time.
Applicable Law
[30] Section 366 of the Act relevantly states:
“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 under subsection (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.”
[31] I have considered the provisions of s.366(2) of the Act in the context of the Full
Bench decision in Nulty v Blue Star Group Pty Ltd2 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA 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.”
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s365.html
[2018] FWC 2478
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[11] 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).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J 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:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (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) 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) [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,
[2018] FWC 2478
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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.”
[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 “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.”
Consideration
[32] This general protections application by Mr Owenhall was made 1 day outside of the
21 day time limit and therefore, can only be pursued if this time limit is extended.
[33] Section 366 of the Act requires the Commission to take into account the matters set
out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the
provision, however, insofar as they are relevant, each matter has been treated as a matter of
significance in the decision making process.
The reason for the delay
[34] If there is a credible explanation for the entirety of the delay then this weighs more
heavily in favour of a finding that there are exceptional circumstances.3
[35] If the applicant failed to provide a credible explanation for any part of the delay that
would tend to weigh against a finding of exceptional circumstances - Stogiannidis v Victorian
Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
[36] The onus rests on Mr Owenhall to explain the delay.
[37] Mr Owenhall has not explained why he could not have lodged the application in the
period between his dismissal and the 1 February 2018. Indeed Mr Owenhall at the time of his
dismissal Mr Owenhall advised Aerocare that he intended to challenge it and downloaded the
application form the day after his dismissal. There does not appear to have been any reason
why Mr Owenhall could not have lodged his application immediately.
[2018] FWC 2478
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[38] As to the period after 1 February 2018, Mr Owenhall contends he was debilitated due
to impact of the medication he was taken. Mr Owenhall could have lodged his claim by a
variety of means including email, online, by express post, or in person. At the initial hearing
Mr Owenhall was provided with an adjournment to afford him the opportunity to provide
medical evidence as to how “his medical condition, treatment and/or medication [impacted]
on his capacity to lodge an unfair dismissal application between 23 January 2018 and 14
February 2018”. The medical evidence provided, at best, was that the impact of his
medication “would have made it difficult to pursue his unfair dismissal claim.”
[39] This case is similar to Shellum v Grill’d Pty Ltd T/A Grill’d Health Burgers [2017]
FWCFB 3893 where the Full Bench observed:
“[16] Ms Shellum attached a substantial number of documents to her Notice of Appeal
and filed further material after the permission to appeal hearing. As was pointed out
during the hearing, 18 the difficulty for the Appellant is that none of the material
provided specifically identifies the mental/physical health issues she was confronting
which are said to have adversely affected her capacity to lodge the s.365 application
during the 21 days after the termination of her employment. Nor was there any such
material before the Commission at first instance.
[17] We would also observe that in the proceedings at first instance the Commissioner
made it clear that Ms Shellum needed to produce:
‘… a certificate from a health practitioner of some description which expresses that
person’s professional opinion as to whether or not you had an illness, whether it’s
physical or mental… which impacted upon your ability to file an application’. 19
[18] The Commissioner made the same point a number of times 20 and provided Ms
Shellum with a further opportunity to provide a medical certificate ‘as to your state of
health between 22 January and 13 February and whether or not whatever condition
you’ve got would have prevented you from making an application on time’.21 No
such material was provided.”
[40] In that matter the Full Bench refused leave to appear from Commissioner Ryan
decision to refuse the application for an extension of time.
[41] The medical evidence before me does not convince me that Mr Owenhall was so
incapacitated that he could not have lodged his application by one of the means described
above.
Any action taken by the person to dispute the dismissal
[42] Other that the protest at the time of dismissal Mr Owenhall took no other action to
contest the dismissal, his contact with his legal representatives was in respect of an ongoing
workers compensation dispute.
Prejudice to the employer (including prejudice caused by the delay)
[43] There is no submission that the granting of an extension of time represents prejudice to
Aerocare.
[2018] FWC 2478
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The merits of the application
[44] In terms of the merits of the application, there is insufficient evidence before me to
make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[45] Consideration of fairness relative to other persons in similar positions is a neutral
factor.
Conclusion
[46] Considering all of the matters discussed above, I am not satisfied that Mr Owenhall’s
circumstances can be regarded as exceptional so as to support an extension of time. The
request for an extension of time is refused and, accordingly, the application will be dismissed.
An Order4 reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr E. Owenhall the Applicant.
Ms L. Vanderstoep on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
May 1.
Printed by authority of the Commonwealth Government Printer
PR606780
1 [2015] FWC 774.
2 [2011] FWAFB 975.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
4 PR606781.
THE FAIR SEAL OF THE THE KCOMMISSION
