1
Fair Work Act 2009
s.394—Unfair dismissal
Manoj Ellikuttige
v
Moonee Valley Racing Club
(U2017/8045)
DEPUTY PRESIDENT MASSON MELBOURNE, 15 SEPTEMBER 2017
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Manoj Ellikuttige alleged that the termination of his employment by the Moonee
Valley Racing Club was unfair.
[2] There was no dispute that the date of termination was 26 June 2015 or that Mr
Ellikuttige was notified of his dismissal that day. A completed Form F2 – Unfair Dismissal
Application form was filed on behalf of Mr Ellikuttige by his representative with the Fair
Work Commission (Commission) on 25 July 2017.
[3] Mr Ellikuttige’s application was therefore not made within 21 days after the dismissal
took effect, as required under s394 (2) (a) of the Fair Work Act 2009 (Cth) (the Act).
[4] The Commission can extend time for the lodging of an unfair dismissal application if
it is satisfied that there are exceptional circumstances under s394(2)(b). In assessing whether
there are exceptional circumstances, the Commission must have regard to certain matters
under s394(3). Only if it is satisfied that there are exceptional circumstances can it then
exercise its discretion to decide whether to extend time.
[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star
Group Pty Ltd 1 where the Full Bench said:
“[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
[2017] FWC 4829 [Note: An appeal pursuant to s.604 (C2018/3924) was
lodged against this decision - refer to Full Bench decision dated 12
September 2018 [[2018] FWCFB 4988] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4988.htm
[2017] FWC 4829
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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.” [Endnotes not reproduced]
[6] At the Hearing, Mr Ellikuttige gave evidence and addressed the material he had filed.
His daughter, Ms Dilki Ellikuttige, also gave evidence on his behalf.
Section 394(3)(a): the reason for the delay
[7] One of the matters that must be considered is whether an acceptable reason for the
delay in making the unfair dismissal application exists.2 Mr Ellikuttige must provide a
credible reason for the whole of the period that the application was delayed.3
[8] The delay required to be considered is the period beyond the prescribed 21 day period
for lodging 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 a reason for the delay beyond the 21 day
period and ultimately whether that reason constitutes exceptional circumstances.4
[9] The Full Bench explained the correct approach by reference to the following example
in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic5:
“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.”
[10] Mr Ellikuttige’s application was filed two years and eight days late. Mr Ellikuttige
submitted a number of reasons for the delay in the filing of his application for unfair
dismissal. In detailing and considering his explanation for the delay it is helpful to summarise
the timeline of relevant events:
Mr Ellikuttige’s employment was terminated on 26 June 20156;
Mr Ellikuttige was arrested and charged on 30 July 20157 in relation to alleged
threats to kill Moonee Valley Racing club staff which were made on 23 July 2015
in the presence of a clinical psychologist, Ms Lisa Bloom8;
In August 2015, Mr Ellikuttige became homeless along with his daughter who he
was caring for at the time9;
Between 17 August and 24 September 2015, Mr Ellikuttige travelled to and from
Sri Lanka with his daughter10;
On 28 July 2016, the charges laid against Mr Ellikuttige in July 2015 were formally
withdrawn by police11;
[2017] FWC 4829
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On 22 May 2017, Mr Ellikuttige met with his lawyer, Mr Sidney Mendis, and
instructed him to file an unfair dismissal application12; and
An unfair dismissal application was filed with the Commission on 25 July 2017.
[11] Mr Ellikuttige stated that following his termination on 26 June 2015 he was “very
stressed”.13 Mr Ellikuttige submitted that the stress and anxiety associated with his
termination, along with his arrest over alleged threats to kill in July 2015, his subsequent
homelessness, his return to Sri Lanka with his daughter in August 2015 and his claimed
ignorance of his rights to pursue unfair dismissal all contributed to the delay in filing his
unfair dismissal application.
[12] In support of his claims of stress and anxiety, Mr Ellikuttige tendered a copy of the
statement of Ms Lisa Bloom, dated 30 July 2015, which was prepared for the police
investigation into the alleged threats to kill14. The statement describes meetings and
discussions between Ms Bloom and Mr Ellikuttige during the period 9 June – 30 July 2015.
During those discussions Mr Ellikuttige reportedly made various statements as to his state of
mind and also made threats to kill Mooney Valley Racing Club staff. The police subsequently
arrested Mr Ellikuttige on 30 July 2015 and charged him with making threats to kill.
[13] The statement of Ms Bloom does not constitute a medical report and, while it indicates
that Mr Ellikuttige was suffering distress at that time, it does not provide any evidence as to
whether Mr Ellikuttige’s medical condition was such that it would have prevented him from
filing an unfair dismissal application in the period immediately following the termination of
his employment on 26 June 2015. Furthermore, it provides no information on his medical
condition beyond 30 July 2015.
[14] Mr Ellikuttige also tendered a medical report prepared by consultant psychiatrist, Dr
Ashok Kumar Singh, which is dated 9 July 201715 but is in fact signed by Dr Singh as at 16
July 2017. Allowing for the difference in dates in the report, the earliest date that Dr Singh’s
opinion could be said to have been formed is that of 9 July 2017. Dr Singh does not provide
any evidence as to whether Mr Ellikuttige’s medical condition impacted his ability to lodge an
unfair dismissal application between the termination of his employment on 26 June 2015 and
the time of preparing his report on 9 July 2017.
[15] Mr Ellikuttige stated that he was of the belief that the police were investigating the
termination of his employment as part of their investigation into the alleged threats to kill.16
No basis for the formation of this belief was provided. In any case, the police matter was
withdrawn on 28 July 2016 and no credible explanation was provided by Mr Ellikuttige as to
the further delay between that date and when he sought advice from his lawyer on 22 May
2017.
[16] On 22 May 2017, Mr Ellikuttige met with his lawyer, Mr Sidney Mendis. Mr
Ellikuttige states that at this meeting he was advised by Mr Mendis that the criminal matter
and his employment termination were separate issues. Mr Ellikuttige states that he then
instructed Mr Mendis to file an unfair dismissal application17. No evidence or explanation was
provided as to why the unfair dismissal application was not then filed until 25 July 2017, a
further two months later.
[2017] FWC 4829
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[17] Mr Ellikuttige stated that he was homeless in the period from August 2015 to 25 July
2017. This evidence was corroborated by Ms Ellikuttige. Further evidence was also provided
by Ms Erin Farrall of the Department of Human Services - Centrelink, in a letter dated 8 June
2016 to the Footscray Housing Office,18 in which reference was made to Mr Ellikuttige’s long
term homelessness.
[18] While Mr Ellikuttige has been homeless for an extended period of time, there was no
evidence as to how that impacted his ability to pursue an unfair dismissal application.
Notably, in the period 5 August 2015 to 28 July 2016, it was submitted by Mr Ellikuttige that
he was required to variously attend court in relation to the criminal proceedings brought
against him. It is difficult to reconcile that attendance and response to the criminal
proceedings brought against him with his claimed inability to manage issues arising from the
termination of his employment.
[19] Mr Ellikuttige and his daughter also provided evidence of their travel back to and from
Sri Lanka in the period 17 August 2015 to 24 September 2015. This travel suggests a
reasonable level of capability and functioning on the part of Mr Ellikuttige at a time when he
claimed to be suffering depression and anxiety.
[20] Moonee Valley Racing Club submitted that Mr Ellikuttige had produced no evidence
that his anxiety, stress, impecuniosity or homelessness had prevented him from filing an
unfair dismissal application.
[21] Moonee Valley Racing Club relied on a number of Commission authorities in support
of its submissions that Mr Ellikuttige’s reasons for the delay do not support an argument that
there are exceptional circumstances:
Mental illness does not provide an exceptional circumstance unless it prevents the
Applicant from filing his application for the entire period of the delay (Muzinda v
Mr & Mrs Jones Pty Ltd19);
The applicant could not rely upon the police investigation as a basis for not
asserting his legal rights before or after 30 July 2015 (Prasad v Alcatel-Lucent
Australia20) and (Costello v Origin Energy Ltd21);
[22] There is little doubt that Mr Ellikuttige found himself in a state of considerable
difficulty and distress following the termination of his employment. That state included “mild
anxiety and depressive symptoms with THC dependence”22 coupled with homelessness and
unemployment. Such circumstances are regrettably neither unusual nor uncommon.
[23] There are, however, a number of factors that weigh against Mr Ellikuttige’s claims
that he was unable to make an application prior to 25 July 2017, two years and eight days
beyond the 21 day statutory period. Those factors include:
The absence of medical evidence as to Mr Ellikuttige’s condition between the date
of his termination on 25 July 2015 and 9 July 2017;
His claimed and mistaken belief as to the role of the police in investigating the
termination of his employment;
His travel to and from Sri Lanka in August–September 2015 with his daughter;
[2017] FWC 4829
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The absence of evidence as to how his homelessness has impacted on the delay in
filing his unfair dismissal application;
His delay in obtaining legal advice following the resolution of the criminal matter
in July 2016; and
The delay in the filing of his unfair dismissal application following instructions
issued to his lawyer in May 2017.
[24] For the reasons outlined above, I am not satisfied that Mr Ellikuttige has provided a
reasonable explanation for the delay in lodging his application. This weighs against a finding
that there are exceptional circumstances.
Section 394(3)(b): whether the person first became aware of the dismissal after it had
taken effect
[25] Mr Ellikuttige was notified of his dismissal in a meeting on 26 June 2015 and was
aware of its immediate effect. He also received a letter of termination on the same day. As he
was aware of the dismissal on the day it took effect, Mr Ellikuttige had the full 21 days to file
his application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c): any action taken by the person to dispute the dismissal
[26] Action taken by the employee to contest the dismissal, other than lodging an unfair
dismissal application, may favour granting an extension of time.23
[27] Mr Ellikuttige said he believed that the police were going to investigate the
termination of his employment as part of the investigation and proceedings that flowed from
the criminal charges laid against him on 30 July 2015.
[28] Mr Ellikuttige also stated that when he received legal advice on 22 May 2017 he was
advised that the criminal proceedings were separate from his employment termination. On the
basis of that advice he then instructed his lawyer on 22 May 2017 to file an unfair dismissal
application
[29] I do not regard Mr Ellikuttige’s claimed and mistaken belief that police were going to
investigate his termination of employment as constituting action taken by him to contest his
termination of employment.
[30] There was no other evidence that Mr Ellikuttige sought to contest the dismissal, other
than lodging an unfair dismissal application on 25 July 2017, and this weighs against finding
that there are exceptional circumstances.
Section 394(3)(d): prejudice to the employer (including prejudice caused by the delay)
[31] Prejudice to the employer will weigh against granting an extension of time.24 Mr
Ellikuttige made no submissions on this issue.
[32] The Moonee Valley Racing Club submitted that it would suffer prejudice due to the
significant length of the delay, the application being two years and eight days out of time. In
doing so they relied on the reasoning in Brisbane South Regional Health Authority v Taylor.25
[2017] FWC 4829
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[33] The prejudice submitted by the Moonee Valley Racing Club includes the requirement
that they determine whether relevant employees are still employed and the impact of the
extended period of time on the recollection of events no longer fresh. I accept that submission
which weighs against granting Mr Ellikuttige a further period to make his application.
Section 394(3)(e) the merits of the application
[34] When the Commission considered the principles applicable to the extension of time
discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in
Kornicki v Telstra-Network Technology Group26, it said:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.”
[35] As evidence on the merits is rarely called at an extension of time hearing, the
Commission “should not embark on a detailed consideration of the substantive case”27 for
the purpose of determining whether to grant an extension of time to the applicant to make
their Application. I have adopted this reasoning.
[36] In his Form F2 – Unfair Dismissal Application form, Mr Ellikuttige stated that he was
dismissed for “attempting to bribe the club in order to gain financial advantage”. In denying
the alleged charges, Mr Ellikuttige stated that the notification of his dismissal followed him
raising enquiries with the Moonee Valley Racing Club regarding the status of an investigation
into rape allegations made against him.
[37] The Moonee Valley Racing Club submitted that it dismissed Mr Ellikuttige “for
serious and wilful misconduct relating to a demand by the Applicant for a financial benefit
from the Respondent under threat”.
[38] I am not able to make a final assessment of the merits as clearly there are factual
disputes between the parties that have not been tested. I consider this criterion to be neutral.
Section 394(3)(f): fairness as between the person and other persons in a similar position.
[39] In Wilson v Woolworths,28 it was said of this consideration:
“It is not therefore entirely clear as to whether or not the so-called principle is
operative in relation to the approach to matters of a similar kind that are currently
before the court or the tribunal or whether the court or the tribunal is to consider how,
in some general sense, similar matters have been approached historically.”29
[40] More recently the question of fairness as between the Applicant and other persons in a
similar position has been considered in Morphett v Pearcedale Egg Farm,30 as follows:
“Cases of this kind will generally turn on their own facts. However, this consideration
is concerned with the importance of an application of consistent principles in cases of
[2017] FWC 4829
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this kind, thus ensuring fairness as between the Applicant and other persons in a
similar position, and that consideration may relate to matters currently before the
Commission or matters which had been previously decided by the Commission.”
[41] No submissions were made by Mr Ellikuttige on this issue and on that basis I consider
this criterion to be neutral.
Conclusion
[42] The delay in filing of the application for unfair dismissal by Mr Ellikuttige was
substantial.
[43] In considering whether exceptional circumstances exist, the conduct of Mr Ellikuttige
throughout the whole period after dismissal is relevant to whether an extension of time should
be granted.
[44] Having taken into account the matters referred to in paragraphs [7]-[41] above, I am,
on balance, not satisfied that there are exceptional circumstances warranting an extension of
time for Mr Ellikuttige’s application to be made. Mr Ellikuttige’s circumstances were
certainly difficult but were not out of the ordinary course, unusual, special or uncommon and
he has not provided a reasonable explanation for the whole of the delay. None of the other
criteria weigh in favour of a finding of exceptional circumstances.
[45] Mr Ellikuttige’s application for an extension of time is refused and therefore his unfair
dismissal application is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr T Lido for the Applicant.
Mr E. Mentiplay for the Respondent
Hearing details:
2017.
Melbourne.
September 8.
OF THE FAIR WORK USTRALIA ISSION THE SEAL
[2017] FWC 4829
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Printed by authority of the Commonwealth Government Printer
Price code C, PR596151
1 (2011) 203 IR 1.
2 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
3 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.
4 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].
5 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].
6 Exhibit A4.
7 Exhibit A1, paragraph 8.
8 Exhibit A4
9 Exhibit A1, paragraph 11.
10 Exhibit A2, paragraph 6.
11 Exhibit A6.
12 Exhibit A1, paragraph 13.
13 Exhibit A1, paragraph 7.
14 Exhibit A5.
15 Exhibit A9.
16 Exhibit A1, paragraph 10.
17 Exhibit A1, paragraph 13.
18 Exhibit A8.
19 [2017] FWC 1181.
20 [2010] FWA 7804.
21 [2017] FWC 3946.
22 Exhibit A9.
23 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
25 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556 per McHugh J.
26 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
27 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
28 Wilson v Woolworths [2010] FWA 2480.
29 Wilson v Woolworths [2010] FWA 2480 at [29]
30 Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29].
http://www.fwc.gov.au/decisionssigned/html/2015fwc8885.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwa2480.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwa2480.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb349.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb349.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb2149.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb287.htm
