1
Fair Work Act
2009
s.365—General protections
Peter Elliott
v
LEAP Legal Software Pty Limited T/A LEAP Legal Software
(C2017/7240)
COMMISSIONER SAUNDERS NEWCASTLE, 6 FEBRUARY 2018
Application to deal with contraventions involving dismissal – application for extension of time
– application dismissed.
[1] On 30 December 2017, Mr Peter Elliott lodged an application pursuant to s.365 of the
Fair Work Act 2009 (Act) alleging that the termination of his employment with LEAP Legal
Software Pty Limited (Respondent) on 8 November 2017 was in contravention of the general
protections provisions of the Act (Application).
[2] Section 366 of the Act provides that a person who has been dismissed and who applies
to the Fair Work Commission (Commission) for it to deal with a general protections dispute
pursuant to s.365 of the Act must make an application within 21 days after the dismissal took
effect.1 However, the Commission may allow a further period for the application to be made
in exceptional circumstances.2
[3] This decision concerns whether I should exercise my discretion to allow Mr Elliott a
further period for his Application to be made.
The Hearing
[4] A hearing was conducted by telephone on 29 January 2018 relation to Mr Elliott’s
application for an extension of time.
[5] Mr Elliott gave evidence in support of his application for an extension of time. The
Respondent adduced evidence from Ms Fiona Crawford, General Manager Human Resources
of the Respondent. Both parties also made submissions.
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by
reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to
begin after a specified day’ the period ‘does not include that day’)
2 Section 366(2) of the Act
[2018] FWC 627[Note: An appeal pursuant to s.604 (C2018/1056) was
lodged against this decision.] [Note: This decision has been quashed - refer
to Full Bench decision dated 06 June 2018 [[2018] FWCFB 3288]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3288.htm
[2018] FWC 627
2
Legislative Scheme
[6] Section 366(2) of the Act states that the Commission may allow a further period for an
applicant to make a general protections application involving a dismissal if the Commission is
satisfied that there are “exceptional circumstances”, taking into account the following five
criteria:
“(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.”
[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.
[8] The principles are well established and are set out in a decision of a Full Bench of Fair
Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group Pty Ltd.3
In that matter the Full Bench held as follows in relation to “exceptional circumstances”:
“[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
Reasons for delay – s.366(2)(a)
[9] A dismissal does not take effect unless and until it is communicated to the employee
who is being dismissed.4 A dismissal can be communicated orally.5
3 [2011] FWAFB 975
4 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
5 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
http://www.fwc.gov.au/decisionssigned/html/Q9605.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Plaksa_v_Rail_Corp.pdf
[2018] FWC 627
3
[10] There must be an acceptable reason for the delay in making the general protections
application.6
[11] The applicant must provide a credible reason for the whole of the period that the
application was delayed.7 Ignorance of the 21 day timeframe is not an exceptional
circumstance.8
[12] The delay required to be considered is the period beyond the prescribed 21 day period
for making an application. It does not include the period from the date of the dismissal to the
end of the 21 day period. However, the circumstances from the time of the dismissal must be
considered in order to determine whether there is an acceptable reason for the delay beyond
the 21 day period and ultimately whether that reason, together with other relevant factors,
constitutes exceptional circumstances.9 In Diotti v Lenswood Cold Stores Co-op Society t/a
Lenswood Organic,10 the Full Bench explained (at [31]) the correct approach by reference to
the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this
would be a relevant consideration if the application was filed 2 days out of time as
occurred in this matter.”
Relevant chronology of events and reasons for delay
[13] There is no dispute between the parties, and I am satisfied on the evidence, that Mr
Elliott’s employment with the Respondent came to an end on 8 November 2017.
[14] The 21 day time period for Mr Elliott to make his Application expired on 29
November 2017.11 Given that Mr Elliott filed his Application on 30 December 2017, the
Application was filed 31 days late.12
[15] In accordance with the principles summarised in paragraphs [9] to [12] above, the
delay required to be considered is the period beyond the prescribed 21 day period for lodging
an application. In this case, that is the period from 30 November 2017 to 30 December 2017.
However, the circumstances from the time of the dismissal on 8 November 2017 must be
considered in order to determine whether there is an acceptable reason for the delay beyond
the 21 day period and ultimately whether that reason, together with other relevant factors,
constitutes exceptional circumstances.
[16] The relevant timeline of events from Mr Elliott’s dismissal on 8 November 2017 may
be summarised as follows:
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
7 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9
8 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016]
FWCFB 349 at [29]-[31]
10 [2016] FWCFB 349
11 That is, 21 days from 8 November 2017 (not including 8 November 2017) is 29 November 2017.
12 That is, 30 December 2017 is 31 days after 29 November 2017.
[2018] FWC 627
4
(a) On 8 November 2017, Mr Elliott was informed orally of the Respondent’s
decision to terminate his employment;
(b) At 8:25am on 9 November 2017, Ms Brid Heffernan, National Sales Manager
of the Respondent, sent an email to Mr Elliott confirming the Respondent’s
decision to terminate his employment effective 8 November 2017. Mr Elliott
was paid one week’s salary in lieu of notice;
(c) On 10 November 2017, Mr Elliott was admitted to a private hospital, the
Adelaide Clinic, for psychiatric care at the direction of his consulting
psychiatrist, Dr Michael Schirripa;
(d) On 1 December 2017, Dr Schirripa completed a medical certificate in relation
to Mr Elliott in which Dr Schirripa, inter alia, set out his diagnosis for Mr
Elliott, listed Mr Elliott’s functional symptoms and expressed the opinions
that:13
(i) Mr Elliott was unfit for work from 27 October 2017 to 31 December
2017 inclusive;
(ii) Mr Elliott was not currently able to do his usual work/study; and
(iii) Mr Elliott could not do any other work for 8 hours or more per week.
(e) On 8 December 2017, Mr Elliott was discharged from the Adelaide Clinic,
having been at that hospital since 10 November 2017;
(f) On 12 December 2017, Mr Elliott attended the Fair Work Ombudsman in
Adelaide, South Australia where he was advised that they could not help him
and he would need to go to the Commission in relation to his potential claim
against the Respondent. He then attended the Commission’s offices in
Adelaide where he was provided with some forms and a list of contacts for
community legal centres;
(g) On 13 December 2017, Mr Elliott attempted to contact the Roma Mitchell
Community Legal Centre in Norwood, South Australia, however the phone
rang out and he was not able to speak with anyone to obtain legal advice;
(h) On 15 December 2017, Mr Elliott contacted the Roma Mitchell Community
Legal Centre and obtained some legal advice over the phone;
(i) Mr Elliott then spent “many days” updating Windows 10 on his laptop
computer. After he had done so Mr Elliott was able to proceed with compiling
the information required to complete his Application;
(j) On 30 December 2017, Mr Elliott filed his Application in the Commission; and
13 Exhibit A3
[2018] FWC 627
5
(k) Mr Elliott then took several days to rest after submitting his Application.14
[17] Mr Elliott believes he completed his Application with “requisite due diligence in the
soonest possible time frame”.15 In support of that contention, Mr Elliott says that “there is no
facility to start an online application, save it and then return to it later to complete, and … one
of the terms and conditions of lodging the online application is that ‘you have provided the
information requested correctly and fully and that an assessment of your application may be
made on the basis of the information provided’”.16
[18] I accept that Mr Elliott has provided an adequate explanation for not filing his
Application in the period from 10 November 2017 to 8 December 2017, during which period
he was admitted to the Adelaide Clinic for psychiatric care. However, I am not satisfied that
he has provided an adequate explanation for his delay in making his Application in respect of
the whole of the period from 9 December 2017 to 30 December 2017, for the following
reasons:
(a) The medical certificate completed by Dr Schrippia certified Mr Elliott as unfit
for work from 27 October 2017 to 31 December 2017 inclusive. It was
completed on 1 December 2017 while Mr Elliott was still admitted to the
Adelaide Clinic and applied to a retrospective period of 35 days (i.e. since Mr
Elliott had become Dr Schirripa’s patient on 27 October 2017) and a
prospective period of 29 days (i.e. until 30 December 2017). Dr Schirripa was
not called to give oral evidence in support of the application for an extension of
time. Accordingly, it was not possible to ask Dr Schirripa:
(i) the basis on which he expressed the opinion in the medical certificate that
Mr Elliott would be unfit for work for a period of 29 days after he
prepared the medical certificate;
(ii) the basis on which he expressed the opinion in the medical certificate that
Mr Elliott was unfit for work in the period from 27 October 2017 to 6
November 2017 when Mr Elliott in fact attended work in that period; or
(iii) whether, in his opinion, Mr Elliott had any capacity to prepare and lodge
his Application at any time prior to 30 December 2017.
The medical certificate dated 1 December 2017 was the only medical evidence
relied upon by Mr Elliott. No other medical evidence was adduced to support a
finding that Mr Elliott did not have capacity or was otherwise unable for
medical reasons to file his Application at any time in the period from 9
December 2017 to 30 December 2017;
(b) In the period from 12 December 2017 until 30 December 2017 Mr Elliott was
able to, and did, take a number of different steps towards making a claim
against the Respondent. In particular, he visited the Fair Work Ombudsman’s
offices, visited the Commission’s offices in Adelaide, contacted a legal centre
14 Exhibit A1 at [19], [29]-[32]; Exhibit A2 at 1d
15 Exhibit A2 at 1d at [9]
16 Ibid
[2018] FWC 627
6
and ultimately obtained some legal advice from them, updated Windows 10 on
his laptop computer, and worked on his Application;
(c) For the reasons summarised in subparagraphs [18(a) and (b)] above, I am not
satisfied that Mr Elliott was incapacitated or otherwise unable to file his
Application for the whole of the period from 9 December 2017 to 30 December
2017;
(d) The time spent by Mr Elliott in searching for and obtaining information and
free legal advice in relation to his dismissal was not, in my view, out of the
ordinary course, unusual, special or uncommon; and
(e) The difficulties and delays Mr Elliott encountered updating Windows 10 on his
laptop computer and not being able to start an online application, save it and
then return to it later were not, in my view, out of the ordinary course, unusual,
special or uncommon. Mr Elliott was able to either lodge his Application
online using the Commission’s Online Lodgment Service (OLS) or by post, fax
or email or in person at the Commission’s office in Adelaide. Mr Elliott gave
evidence that he was provided with a hard copy of forms by the Commission
on 12 December 2017. In the circumstances, Mr Elliott had a number of
options for completing his Application, including completing the form by hand
and lodging it in person at the Commission’s office in Adelaide which he
attended on 12 December 2017.
[19] On balance, I find that this factor (s.366(2)(a)) weighs against granting Mr Elliott an
extension of time.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[20] Action taken by the employee to contest the dismissal, other than lodging a general
protections application, may favour granting an extension of time.17
[21] When Mr Elliott was advised of his dismissal during a telephone conversation with Ms
Heffernan on 8 December 2017, he tried to convince Ms Heffernan to reconsider the decision
to terminate his employment with the Respondent and give him another chance. He did the
same during a telephone conversation with Mr Brendan Smart, CEO of the Respondent, a few
hours later on 8 December 2017. Following the call, Mr Elliott sent a text message to Mr
Smart in relation to his dismissal, asking for another opportunity.
[22] For the reasons set out in the previous paragraph, I find that Mr Elliott did take action
to dispute his dismissal and this factor (s.366(2)(b)) weighs in favour of granting Mr Elliott an
extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
[23] Prejudice to the employer will weigh against granting an extension of time.18
However, the “mere absence of prejudice to the employer is an insufficient basis to grant an
17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
18 Ibid.
[2018] FWC 627
7
extension of time”.19 The employer must produce evidence to demonstrate prejudice. A long
delay gives rise “to a general presumption of prejudice”.20
[24] The period of the delay in this matter was 31 days. No evidence was adduced by the
Respondent in this case to demonstrate prejudice.
[25] I am satisfied that there would be no greater prejudice to the Respondent caused by the
Application being dealt with now than there would have been had it been made within the 21
day time period. Accordingly, I find that this factor is a neutral consideration in determining
whether to grant an extension of time.
Merits of the application – s.366(2)(d)
[26] Mr Elliott commenced employment with the Respondent on 28 August 2017 in the
position of Product Consultant. Mr Elliott alleges that his employment was terminated on 8
November 2017 because of his mental disability in contravention of s.351 of the Act. Mr
Elliott further alleges that his employment was terminated because he was temporarily absent
from work because of illness or injury in contravention of s.352 of the Act.
[27] The Respondent contends that the sole reason for the decision to terminate Mr Elliott’s
employment was because of his poor performance in the role of Product Consultant. The
Respondent denies that Mr Elliott’s employment was terminated because of his mental
disability or because he was temporarily absent from work because of illness or injury. The
Respondent denies being aware that Mr Elliott suffered from any mental disability prior to
making the decision to terminate his employment. The Respondent further denies that Mr
Elliot was temporarily absent from work because of illness or injury at the time his
employment was terminated because Mr Elliott did not provide a medical certificate, statutory
declaration or other substantiating information about the illness or injury until 2 January 2018.
[28] The resolution of the key contested factual question concerning the reason(s) for the
termination of Mr Elliott’s employment will only be able to be determined after a full hearing
on the merits, including cross examination of the decision makers. In those circumstances, I
am satisfied that the merits of the Application is a neutral consideration in relation to whether
or not I should extend time for the Application to be made.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[29] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd21 considered this criterion and
said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is
concerned with the importance of the application of consistent principles in cases of
this kind, thus ensuring fairness as between the Appellant and other persons in a
similar position. This consideration may relate to matters currently before the
Commission or matters previously decided by the Commission.”
19 Ibid.
20 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
21 [2016] FWCFB 6963
[2018] FWC 627
8
[30] I am not satisfied that the issue of fairness as between Mr Elliott and other persons in a
similar position is a relevant consideration in this matter. Because it is not a relevant, I find
that this factor is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[31] Having taken into account the matters referred to in paragraphs [9] to [30] above, I
am, on balance, not satisfied that there are exceptional circumstances warranting Mr Elliott
being allowed a further period for his Application to be made. Although I have sympathy for
Mr Elliott, he has not, on the evidence before me, provided an acceptable reason for the whole
of the delay in making his Application. My evaluative judgment is that Mr Elliott’s
circumstances were not, either viewed in isolation or considered together, out of the ordinary
course, unusual, special or uncommon.
[32] Accordingly, the application for an extension of time is refused. The jurisdictional
objection to the Application being made out of time is upheld and the substantive
Application is dismissed.
COMMISSIONER
Appearances:
Mr P Elliott, Applicant.
Ms F Crawford, on behalf of the Respondent.
Hearing details:
2018.
Newcastle (by telephone):
January 29.
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PR599947
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
