1
Fair Work Act 2009
s.604 - Appeal of decisions
Shane Arch
v
Insurance Australia Group Services Pty Limited
(C2019/7126)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT
MELBOURNE, 12 FEBRUARY 2020
Appeal against decision [2019] FWC 7527 of Deputy President Lake at Brisbane on 31
October 2019 in matter number C2019/3223.
Introduction
[1] Mr Shane Arch has lodged an appeal, for which permission to appeal is required,
against a decision of Deputy President Lake issued on 31 October 20191 (decision) in which
he refused to grant Mr Arch an extension of time pursuant to s 366 of the Fair Work Act 2009
(FW Act) to file a general protections application pursuant to s 365. Mr Arch contends on a
number of bases that the decision was in error.
[2] Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) relevantly provides
that a notice of appeal under s 604 must be filed within 21 calendar days after the date of the
decision the subject of the appeal or within such further time allowed by the Commission on
application by the appellant. Mr Arch lodged his notice of appeal at 12.03am on 22 November
2019, the 22nd day after the decision was published. Accordingly, in addition to permission to
appeal, Mr Arch requires an extension of time pursuant to rule 56(2)(c).
[3] As stated at the outset, the decision was made pursuant to s 366 of the FW Act.
Section 366(1) requires a general protections dismissal application to be made within 21 days
after the dismissal took effect or within such further period as the Commission allows under s
366(2). Mr Arch’s application was not filed within this 21-day time period, and it was
therefore necessary for him to obtain an extension of time under s 366(2) in order to make his
application. Section 366(2) sets out the circumstances in which the Commission may grant an
extension of time as follows:
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
1 [2019] FWC 7527
[2020] FWCFB 601
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 601
2
(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.
Factual background
[4] It is not in dispute that the respondent to the appeal, Insurance Australia Group
Services Pty Limited (IAG), dismissed Mr Arch from his employment effective from 30 April
2019. The 21-day time period to file a general protections application in relation to this
dismissal therefore expired at midnight on 21 May 2019. At 2.59am on 22 May 2019, Mr
Arch sent an email to the Melbourne registry of the Commission which stated (omitting
formal parts):
“I am hoping to be able to confirm my 21 day window. I will resubmit as soon as the
online lodgement tool is back open at 6.30am.”
[5] The email also contained a screenshot of the Online Lodgment Service page on the
Commission’s website. The screenshot showed that the time and date on the computer on
which it was taken was 11.37pm on 21 May 2019, and the page at that time included the
following statement (italics and underlining added):
“Service currently under maintenance
The Commission’s Online Lodgment Service is currently undergoing scheduled
maintenance.
During this time you can still lodge an application by downloading the relevant Form.
This application can be submitted to your local Commission office by email, fax and
during business hours over the phone or the counter.
Email, phone, fax and address details are available on the Commission offices page
[sic]. Otherwise you might like to wait until the Online Lodgment Service is available
again (if this does not negatively affect any applicable timeframes for the application
you are considering).”
[6] The email also attached a copy of the Commission’s Form F8, which is the standard
form for making a general protections dismissal application.
[7] At 3.31pm on 22 May 2019, Mr Arch lodged 15 documents with the Commission,
which were classified in the Commission’s computerised file system (CMS) as being in the
category and code of “General Protections” and being in the type “s.365 – Application to deal
with contraventions involving dismissal”. The documents included the following:
[2020] FWCFB 601
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A document described in CMS as an “Incomplete application”, which consisted of a
substantially completed Form F8 general protections dismissal application which
omitted the first three of eight pages. The application acknowledged that it was not
filed within the 21-day time period and gave an explanation for this, including that Mr
Arch had engaged with his employer on 17 May 2019 in an attempt to resolve his
dispute, and that this had caused him to delay attempting to file his application until
late on the final day, at which time the Commission’s online lodgement portal was
down for maintenance. The partial application identified the remedies he sought. In
relation to the alleged contravention of the FW Act upon which he relied, the
application stated: “This section will be updated pending return commentary by my
employer. A final complete application will be submitted by Wednesday, 29 May
2019”. The document was signed by Mr Arch and dated 21 May 2019.
A copy of the IAG Enterprise Agreement 2016.
A copy of IAG’s letter dated 30 April 2019 terminating Mr Arch’s employment.
Various letters, emails and other documents passing between Mr Arch and IAG, and
IAG and its workers’ compensation insurer, generally attesting to an ongoing
employment dispute between Mr Arch and IAG from late 2017 arising from a
restructure of positions and Mr Arch’s subsequent absence from work due to mental
health issues.
[8] At 3.37pm, Mr Arch sent all his “supporting documents” (that is, all the above
documents except the “incomplete application”) to the Commission again, contained in a
single PDF document.
[9] CMS records that at 12.30pm on 23 May 2019, Mr Arch paid the Commission by
credit card the amount of $71.90, which payment was recorded as “Fee payment for s.365 –
Application to deal with contraventions involving dismissal”. This payment was made over
the telephone, and it is likely that the Commission initiated the telephone discussion, since
CMS records that a staff member in the Commission registry spoke to Mr Arch at about the
same time, explained the process to him and advised that his completed application would
need to be returned within 14 days. The CMS notation records that Mr Arch said that he
understood and advised that he would have a completed application by 29 May 2019.
[10] Very shortly afterwards, at 12.43pm on 23 May 2019, the Commission sent a letter by
email to IAG (addressed to the IAG manager who had signed Mr Arch’s termination letter)
which, omitting formal parts, stated:
“Application for General Protections Dispute
Title: Arch, Shane v IAG
Fair Work Commission Matter Number: C2019/3223
The Fair Work Commission (the Commission) has received a general protections
dispute application from Mr Shane Arch in relation to their employment with IAG.
[2020] FWCFB 601
4
The Commission is currently awaiting further information from the applicant in
relation to this application. This application cannot be progressed at this time.
If the necessary information is not provided, the application may be dismissed. If
the Commission dismisses the application you will be notified.
If the application is able to be progressed you will receive a letter from the
Commission explaining the next stage in the processing of the application.
Please note that the Commission has made no assessment of the merits, or
otherwise, of the application and you are not required to do anything at this
stage.
For more information you can telephone the Commission on 1300 799 675 or go to
www.fwc.gov.au.”
[11] There was thereafter considerable delay on Mr Arch’s part in filing his completed
application. On 4 June 2019, IAG was sent another letter by email containing the same text as
the 23 May 2019. On 6 June 2019 Mr Arch advised that he had a meeting with a legal
representative and would lodge his completed application after the meeting. On 11 June 2019,
Mr Arch called the Commission to advise that he would file the completed application in the
next 24-48 hours, and he wanted to ensure his matter was not dismissed until then. On 13
June 2019, a Commissioner staff member contacted Mr Arch and left a voice message which
is noted as being to the following effect:
“Please advise the Commission has not received a completed application form. Original
lodgment is missing pages 1, 2 and 3. Please also discuss if application has been
lodged out of the 21 day time frame (appears to have been as per date on termination
letter) matter may need to proceed to EOT hearing where A can provide their reasons
for late lodgment - Portal maintenance. If completed application is not received in 7
days matter may be referred to member to be dismissed.”
[12] On the same day, Mr Arch was sent a letter which relevantly stated (italics and
underlining added):
“Fair Work Commission Matter Number: C2019/3223
The Fair Work Commission (the Commission) received a general protections dispute
application from you on 22 May 2019.
This application was incomplete with some sections on the Form F8 not completed.
These sections will need to be completed and the Form returned to the Commission. A
copy of the Form F8 filed by you is attached.
If you wish to proceed with the above claim please forward the necessary
documentation, with payment if required or a completed application for waiver as
soon as possible, quoting Matter Number C2019/3223.
In the absence of any advice from you within 7 days of the date of this letter,
this application may be dismissed.”
[2020] FWCFB 601
5
[13] The same day, Mr Arch telephoned the Commission and advised that he still intended
to proceed with the application and would send his completed form that night. On 20 June
2019, Mr Arch again telephoned the Commission and advised that he was in the process of
“creating” his application and would lodge it the following day.
[14] The matter was then transferred from the Commission’s registry to Deputy President
Kovacic, and on 21 June 2019 the Deputy President’s chambers sent the following email to
Mr Arch (omitting formal parts, emphasis in original):
“C2019/3223 – Arch, Shane v IAG
Dear Mr Arch
I refer to the above matter and advise that it remains incomplete. Despite repeated
attempts to contact you, the Commission has not received a completed Form F8 .
It is requested that a completed form be returned to the Commission by close of
business on Tuesday 2 July 2019.
In the absence of any advice from you, the Deputy President will issue a public
decision and order dismissing the application.
Alternatively if the you wish to no longer wishes to press the application [sic], it is
requested that a Notice of Discontinuance is filed.”
[15] On 24 June 2019 Mr Arch advised by email that he apologised for “my struggles in
filling in what is no doubt meant to be a simple form” and that his completed form would be
sent in no later than close of business on 28 June 2019. On 2 July 2019 Mr Arch left a
voicemail message saying that the form would be received that day. He did the same on 3 July
2019. On 4 July 2019 he sent in an email which stated:
“Please find attached an almost completed form. Since receiving medical treatment I
have been able to keep calm and put everything together, so close to finishing.
Attached is what I have completed to date, I am so embarrassed and apologetic, I wish
I knew why this is so hard. I’ve attached a copy of a photo showing it’s completed,
just needs to be in the form…
I will continue to put together and send through, only need a few hours to finish, I
hope this is okay for now.”
[16] Attached to this email, among other things, was a modified version of the Form F8
which he had signed on 21 May 2019 and lodged on 22 May 2019. It included the first three
pages and added, in respect of the alleged contravention, a lengthy response to various matters
contained in his termination letter. On 5 July 2019, the Commission sent Mr Arch an email
which, omitting formal parts, stated (italics and underlining added):
“The Fair Work Commission received an application from you on 22 May 2019, to deal
with contraventions involving dismissal. Applications must be lodged within 21 Days
[2020] FWCFB 601
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of the dismissal taking effect. This matter has been lodged with the Commission
outside of the 21 day statutory time frame.
We will be seeking the consent of the respondent to progress the matter to a
conciliation teleconference in the first instance. If no consent is provided for
conference at first instance then an extension of time hearing will be held. This
process requires a Member of the Commission to consider and be satisfied that there
are exceptional circumstances to allow the application to continue, taking into account:
The reason for the delay
Steps taken to dispute the dismissal
Prejudice to the Employer including prejudice caused by the delay
The merits of the application
Fairness as between the person and other persons in a like position
The Commission will be in contact regarding how the matter will progress shortly.
If you have any questions regarding this, please call the General Protections Team on
1300 780 699.”
[17] An email to similar effect to the above, except that it omitted the emphasised part, was
also sent to IAG. IAG consented to a conciliation conference occurring, and this was
conducted on 2 September 2019 but did not resolve the dispute. The matter was then referred
to the Deputy President Lake for determination as to whether Mr Arch should be granted an
extension of time pursuant to s 366. In its submissions in relation to this issue, IAG submitted
that the application had been lodged 44 days late. There was considerable delay in the process
which was substantially caused by Mr Arch’s mental health issues, and a telephone hearing
was eventually conducted on 2 October 2019. On 4 October 2019, Mr Arch filed evidence
concerning his mental health condition, including a report from his clinical psychologist dated
3 October 2019. As earlier stated, the Deputy President issued his decision on 31 October
2019.
The decision
[18] In his decision the Deputy President identified the issue to be determined by him as
follows:
“[2] The Applicant was employed by Insurance Australia Group Services Pty Ltd (the
Respondent or the Employer) on 17 July 2006 and was dismissed on 30 April 2019.
His completed application under s. 365 of the Act was not lodged in the Commission
until 4 July 2019. The period of 21 days ended at midnight on 21 May 2019. The
application was therefore lodged 44 days out of time. The Applicant asks the
Commission to allow a further period for the application to be made. The Respondent
opposes the granting of an extension of time.”
[19] After summarising the principles relevant to the grant of an extension of time pursuant
to s 366, the Deputy President dealt with each of the mandatory considerations specified in s
366(2) in turn. In relation to s 366(2)(a), the Deputy President first stated, again, that Mr
Arch’s s 365 application was 44 days late, and then said:
[2020] FWCFB 601
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“[9]…The Applicant had previously sent in an incomplete application, which was filed
with the Commission on 22 May 2019. Had this been correctly and completely
submitted, it would have been only one day late.”
[20] The Deputy President considered, and rejected, a number of matters advanced by Mr
Arch as constituting reasons for his delay, including his mental health and the fact that the
Commission’s online lodgement portal was down during the late evening of 21 May 2019. In
relation to the former matter, the Deputy President did not accept that this prevented Mr Arch
from filing his application in time.2 In relation to the latter, the Deputy President said:
“[14]… regarding the Commission’s e-portal undergoing maintenance on the evening
of 21 May 2019, I can confirm that this occurred; however, this did not prohibit the
Applicant from filing an application at any stage before this period, and did not
prevent the Applicant from filing an incomplete application on 22 May 2019. He
could have filed a complete application on this date as the maintenance only lasted a
matter of hours.”
[21] The Deputy President concluded that there was no reasonable or acceptable
explanation for the delay, and that this weighed strongly against an extension of time.3 In
relation to s 366(2)(b), the Deputy President accepted that Mr Arch had during the 21-day
period challenged his termination of employment, and found that this weighed in favour of
the grant of an extension.4 As to s 366(2)(c), the Deputy President said:
“[17] The Employer maintains that prejudice would be experienced by it as it now has
two employees who would be key witnesses who were involved in the management of
the Applicant’s employment who have ceased working for the Employer. They are
either on extended leave or are no longer employed by the Respondent. If the
Applicant had filed his application within the statutory period they would have had the
opportunity to obtain responses from these employees prior to their departure. Forty
four days is not an insignificant period of time. I therefore consider there to be at least
some prejudice to the employer if an extension of time is to be allowed.”
[22] In relation to s 366(2)(d) and (e), the Deputy President considered these to be neutral
factors. The Deputy President concluded:
“[23] Having regard to all of the matters that I am required to take into account under s.
366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist.
Aside from the Applicant having taken steps to contest the dismissal, none of the
factors in s 366(2) of the Act particularly weigh in favour of granting an extension. In
my view, the circumstances of this case are not exceptional, either individually or
when considered together.”
Submissions
[23] Mr Arch was self-represented. His notice of appeal did not identify any grounds of
appeal. He submitted, in broad summary, that the Deputy President was wrong to not grant
2 Ibid at [12]
3 Ibid at [14]
4 Ibid at [15]
[2020] FWCFB 601
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him an extension having regard to his mental health condition and its effect on his capacity to
concentrate and meet deadlines. We will not attempt to summarise the detail provided by Mr
Arch in connection with this for privacy reasons, but we note that in this connection he said in
his written submissions:
“It is correctly noted that I had not been mentally able to articulate adverse action had
occurred as a result of a workplace right. I can confirm that as a result of lodging a
workplace right in December 2017 I was subject to adverse action being taken against
me in form of:
Dismissing my employment
Injuring me during my employment
Altering my employment position to my detriment
Discriminating between me and other employees.”
[24] Mr Arch also explained in his oral submissions that he had attempted to file his
general protections dismissal application on 21 May 2019, but the online lodgement portal
was closed for maintenance.
[25] IAG submitted:
Mr Arch had been terminated solely for misconduct;
his incomplete application was missing several pages, did not identify the respondent
and did not articulate his claim;
IAG was not served with a copy of the incomplete or complete application until 5 July
2019;
the notice of appeal was filed outside the statutory time limit, and no reason had been
advanced as to why an extension of time should be granted;
no appeal grounds were included in the notice of appeal;
Mr Arch had identified no case for the grant of permission to appeal nor any instance
of appealable error in the decision;
the Deputy President had properly taken into account all the matters in s 366(2), and
there was no evidence that the discretion was not properly exercised;
the Deputy President was correct to conclude that Mr Arch’s mental health condition
was not such as to prevent him from filing his application in a timely fashion; and
the Deputy President was correct to conclude that the delay in filing the application
had caused prejudice to IAG, in that on or after 30 May 2019 a number of IAG’s
employees who had been involved in relevant dealings with Mr Arch had left IAG’s
employment.
Consideration
[2020] FWCFB 601
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[26] At the outset, it is necessary to state that we are wholly satisfied that Mr Arch has at
all relevant times been suffering from a serious mental health condition which originated well
before his dismissal. We reach this conclusion on the basis of documentary material
concerning the dealings which various persons have had with Mr Arch over this period,
medical reports, and Mr Arch’s presentation at the appeal hearing and his own description of
his mental state. Again, for privacy reasons, we do not propose to describe in any detail Mr
Arch’s condition and the behavioural symptoms he has displayed. It is sufficient to refer
briefly to two medical reports. The first is a report of Dr Chiara Paganini, Clinical
Psychologist, dated 3 October 2019, which was before the Deputy President. Dr Paganini
diagnosed Mr Arch as suffering from Generalised Anxiety Disorder and Major Depressive
Disorder, for which he had been under treatment for over a year. The second was a report of
Mr Arch’s general practitioner, Dr Cathy Grech, dated 8 November 2019 which was filed in
the appeal proceedings. The report states:
“My name is Dr Cathy Grech, and I have been Shane's General Practitioner since
March 2018 and have seen him regularly since. I am aware that Shane's recent hearing
to determine whether he had valid reasons for not submitting his application on time
was declined and Shane is currently undertaking appeal processes.
During the period of time Shane was writing his application, he was extremely
agitated and anxious – so much so that his original hearing in August was postponed
due to his behaviour (I am aware of this as I was contacted by [name omitted]
regarding Shane's behaviour that day). I also was very concerned about his mental
state in the weeks leading up to that and I had referred him to an semi-acute
psychiatric service for review/opinion (Epion)- Shane saw that team on 4 occasions
from April to August 2019 for support and medication review/change. Shane's
symptoms at that time made it very difficult for him to concentrate and complete the
application on time, and I do believe he has valid reasons for not being able to do so.
Your consideration of the situation would be greatly appreciated when reviewing
Shane's appeal at this time.”
[27] Our conclusion concerning Mr Arch’s state of mental health is relevant to two aspects
of this appeal proceeding, as we explain below.
[28] The initial issue which requires consideration is whether Mr Arch should be allowed
an extension of time to file his appeal pursuant to rule 56(2)(c) of the FWC Rules. We have
decided to grant this extension, for three reasons:
(1) The delay was extremely short, being only a few minutes.
(2) Mr Arch’s capacity to file his appeal notice in time was adversely affected by
his mental health condition.
(3) The appeal, for reasons which we shortly explain, has substantive merit.
[29] We have earlier set out the essential features of the Deputy President’s decision. It is
apparent that the decision proceeded on the factual premise that Mr Arch lodged his general
protections dismissal application 44 days late. At the hearing of the appeal, although the issue
was not squarely raised by Mr Arch in his notice of appeal or submissions, we raised with
IAG the question of whether this factual premise was correct or, alternatively, whether Mr
[2020] FWCFB 601
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Arch was for the purpose of s 366 to be regarded as having lodged his application on 22 May
2019, only one day late. IAG, as earlier outlined, maintained the position that the application
was 44 days late, having been filed in complete form only on 4 July 2019.
[30] We have come to the conclusion that the Deputy President erred in approaching Mr
Arch’s application for an extension of time pursuant to s 366 on the basis that he was 44 days,
and not only one day, out of time. We have earlier set out in detail the relevant chronology of
events. The Deputy President’s analysis of the issue to be determined proceeded on the
implicit premise that, because what was lodged by Mr Arch on 22 May 2019 was not a
complete application in accordance with the prescribed Form F8, it was no application at all.
[31] This was not the correct approach. A similar issue was dealt with in the Full Bench
decision in Hambridge v Spotless Facilities Services Pty Ltd,5 where concerned a situation
where a dismissed employee attempted to file an unfair dismissal remedy application but used
the wrong form in doing so. The Full Bench said:
“[26] … The Commission is required by s.577(b) to perform its functions and exercise
its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’.
In this case, that requirement would operate to direct the Commission to look at the
substance of the first application, not the form that happened to be used to make it. In
substance, we consider that it was an unfair dismissal application: it was intended to
be one, it was described as one in Mr Hambridge’s covering email, and its contents
were concerned with contentions of unfairness in the dismissal rather than any cause
of action for a contravention of Pt 3-1 of the FW Act. It must be acknowledged that
Mr Hambridge attempted in the first application to respond to requests and questions
concerning the general protections provisions of the FW Act, but it is apparent that he
did so in an endeavour to complete a form which he understood at the time to be for
an unfair dismissal remedy application.”
[32] An examination of the substance, as distinct from the form, of what Mr Arch did on 22
May 2019 makes it clear that he lodged a general protections dismissal application. We have
described the documents which Mr Arch lodged on 22 May 2019. In short, he electronically
filed a partial Form F8 missing (we presume by accident) the first three pages. The partial
document leaves no room for doubt that it was intended to be a general protections dismissal
application. Although, because of the missing pages, the document did not identify the
respondent or the dismissal the subject of the application, the accompanying documents (in
particular the termination letter) made it clear that the application concerned Mr Arch’s
dismissal from his employment with IAG on 30 April 2019.
[33] We have set out the chronology of what followed in some detail above. It is clear that
the Commission’s registry immediately proceeded on the basis that Mr Arch had filed a
general protections dismissal application on 22 May 2019. It was recorded as such on CMS
and assigned a matter number. The following day, the Commission obtained from Mr Arch
the prescribed filing fee for a general protections dismissal application and informed IAG in
writing that it had received such an application in respect of Mr Arch’s former employment
with IAG. Subsequent advice to Mr Arch about the need for him to provide a complete Form
F8 proceeded, as we have earlier set out, on the express premise that Mr Arch had filed a
general protections dismissal application on 22 May 2019, albeit an incomplete one. Mr Arch
5 [2017] FWCFB 2811
[2020] FWCFB 601
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was repeatedly advised by the Commission that if he did not file a completed document, he
was at risk of having his application dismissed – advice that was premised on there being an
extant application capable of being dismissed. He was never advised (prior to the decision)
that the Commission did not regard him as having filed an application for the purpose of s 366
on 22 May 2019 with the consequence that time was still running for the purpose of that
provision. In the circumstances described, it would be unconscionable for the Commission to
subsequently proceed on the basis that Mr Arch did not file any application for the purpose of
s 366 until 4 July 2019.
[34] It is undoubtedly the case that Mr Arch did not file an application in the prescribed
form on 22 May 2019. Section 585 of the FW Act requires that “An application must be in
accordance with the procedural rules (if any) relating to applications of that kind.” But, as
has been explained in a number of Full Bench decisions,6 non-compliance with s 585 does not
invalidate an application because the FW Act confers discretionary procedural powers as to
how to deal with such an application. First, immediately following s 585, s 586 provides:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a
matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the
FWC.
[35] Second, s 587(1)(a) provides that the Commission may dismiss an application if it is
not made in accordance with the FW Act. Thus, where a defective application is filed, it may
be the subject of correction, waiver or dismissal. It may also be discontinued under s 588. But
the FW Act does not disclose an intention to treat it as being entirely invalid and of no effect.
The advice given by the Commission staff to Mr Arch from 22 May 2019 until 4 July 2019
(when he finally provided an application in proper form) was at all times consistent with this
legal position.
[36] Because the Deputy President proceeded on the wrong factual premise, his exercise of
the guided discretion pursuant to s 366(2) miscarried. There is a big difference between an
application that is one day late and one that is 44 days late. In respect of the five mandatory
considerations prescribed by s 366(2), the Deputy President determined that those in
paragraphs (a) and (c) weighed against the grant of an extension, paragraph (b) weighed in
favour of an extension and the other matters were neutral. The findings which the Deputy
President made in respect of paragraphs (a) and (c) were explicitly based on there having been
a 44-day delay and are thus vitiated by the incorrect factual premise.
[37] In the circumstances, we consider that permission to appeal should be granted. The
decision proceeded upon a significant error of fact, and the outcome manifested an injustice to
Mr Arch. For the reasons we have given, the appeal will be upheld and the decision quashed.
6 Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070; 241 IR 142 at [42]; Hambridge v Spotless Facilities Services Pty Ltd
[2017] FWCFB 2811; 271 IR 360 at [27]-[31]; CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717 at [41]-[49]
[2020] FWCFB 601
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Re-determination of the extension of time application
[38] We consider that the procedurally convenient course is for us to re-determine,
pursuant to s 607(3)(b) of the FW Act, the application for an extension of time under s
366(1)(b) on the basis of the evidentiary material that was before the Deputy President and the
further material concerning Mr Arch’s medical condition that was placed before us. We
proceed on the basis that Mr Arch’s application was filed on 22 May 2019, one day out of
time. We will consider each of the mandatory s 366(2) matters in turn.
Reason for the delay - s 366(2)(a)
[39] We infer that two matters caused Mr Arch to delay preparing and attempting to file his
application until late on 21 May 2019, the 21st day since his dismissal: first, his desire to try
initially to resolve his dispute with IAG directly and, second, his mental health condition,
which made it difficult for him to grapple with an issue which he found to be intensely
distressing. We are entirely satisfied, based on his signature and date on the document
ultimately filed, that Mr Arch did actually prepare his application on 21 May 2019. It is also
clear that Mr Arch knew that there was a 21-day time period requirement which ended at
midnight on 21 May 2019 and that he intended to lodge his application shortly before that
time. His failure to do so can be explained by the fact that the online lodgement portal was
closed for maintenance purposes.
[40] This did not necessarily prevent Mr Arch from lodging his application since, as his
screenshot of the relevant webpage disclosed, it was at least possible for him to file the
application as an attachment to an email sent to a Commission office. However Mr Arch’s
email sent at 2.59am on 22 May 2019 indicates that he believed that the closure of the online
lodgement portal meant that his “21 day window” would remain in place while the portal
remained under maintenance. It is possible that Mr Arch misread the advice on the webpage
which we have earlier put in emphasis – that is, he may have read the words “(if this does not
negatively affect any applicable timeframes for the application you are considering)” as if the
word “if” was not there. We would also infer from the evening’s events that Mr Arch was
engaged in endeavouring to lodge his application (or was at least waiting for the online
lodgement portal to re-open) from about 11.30pm on 21 May 2019 to about 3.00am on 22
May 2019. This bespeaks of genuine effort to lodge his application.
[41] We do not know precisely when the online lodgement portal became accessible again.
However his filing of his incomplete application at 3.31pm on 22 May 2019 was, we
consider, reasonably prompt in the circumstances. We conclude that there was a reasonable
explanation for the delay arising from the peculiar combination of circumstances we have
described, and this weighs in favour of the existence of the requisite exceptional
circumstances.
Action to dispute the dismissal - s 366(2)(b)
[42] The Deputy President’s conclusion in respect of this consideration was not affected by
the error in respect of the length of the delay. We agree with and adopt his conclusion that Mr
Arch challenged his dismissal before the 21-day period expired, and that this weighs in favour
of the requisite exceptional circumstances.
Prejudice to the employer - s 366(2)(c)
[2020] FWCFB 601
13
[43] IAG contended that it was prejudiced because of the departure from its employ, on or
after 30 May 2019, of a number of persons involved in its dealings with Mr Arch prior to his
dismissal. However, as we have set out, the application was filed on 22 May 2019 and IAG
was informed that Mr Arch had made the application on 23 May 2019. Accordingly we do not
accept that the delay has given rise to any prejudice to IAG. In the circumstances of the short
delay involved, we will treat this as a neutral consideration.
Merits of the application - s 366(2)(d)
[44] We agree and adopt with the Deputy President’s conclusion that this should be treated
as a neutral consideration. We note that the Deputy President reached this conclusion
notwithstanding that he found that Mr Arch had not identified the workplace right or
protected attribute he relied upon.7 The position now, however, is that Mr Arch as earlier
explained was able to articulate the basis of his general protections case in his appeal
submissions. This reinforces the conclusion that this is at least a neutral consideration.
Fairness as between the person and other persons in a similar position - s 366(2)(e)
[45] We agree with and adopt the Deputy President’s conclusion that this is a neutral
consideration.
Conclusion
[46] Having regard to the above matters, we have formed the conclusion that the requisite
exceptional circumstances exist. We have determined to exercise our discretion under s
366(2) in favour of the grant of an extension for the reasons that the delay was short, Mr Arch
was subject to a relevantly deleterious mental illness at the relevant time, and there was a
reasonable explanation for the delay.
Orders
[47] We order as follows:
(1) We extend time for Mr Arch to file his appeal until 22 November 2019.
(2) Permission to appeal is granted.
(3) The appeal is upheld.
(4) The decision ([2019] FWC 7527) is quashed.
(5) We extend time for Mr Arch to file his general protections dismissal
application until 22 May 2019.
(6) Mr Arch’s application (C2019/3223) is referred back to Deputy President Lake
for further disposition in accordance with s 368 of the FW Act.
7 [2019] FWC 7527 at [20]
[2020] FWCFB 601
14
VICE PRESIDENT
Appearances:
S Arch on his own behalf.
M Smith on behalf of Insurance Australia Group Services Pty Limited.
Hearing details:
2020.
Melbourne (with video-link to Sydney):
5 February.
Printed by authority of the Commonwealth Government Printer
PR716439
OF THE FAIR WORK MISSION THE
