1
Fair Work Act 2009
s.394—Unfair dismissal
George Georgiou
v
Transurban Ltd
(U2022/1364)
COMMISSIONER MATHESON SYDNEY, 23 MAY 2022
Application for an unfair dismissal remedy – filed out of time – circumstances not exceptional
– application dismissed.
[1] Mr George Georgiou (Applicant) made an application to the Fair Work Commission
(Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a
remedy, alleging that he had been unfairly dismissed from his employment with Transurban
Ltd (Respondent).
[2] The information provided in the application and in the employer response form lodged
by the Respondent indicates that the application may have been made out of time.
[3] Before considering the merits of the application, the Commission must be satisfied that
the application was not made out of time.
When must an application for an order granting a remedy be made?
[4] Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The Hearing
[5] There being contested facts involved, the Commission is obliged by s.397 of the FW
Act to conduct a conference or hold a hearing.
[6] After taking into account the views of the Applicant and the Respondent and whether a
hearing would be the most effective and efficient way to resolve the matter, I considered it
appropriate to hold a hearing for the matter (s.399 of the FW Act). A hearing was held on 11
March 2022 (Hearing).
[2022] FWC 1240 [Note: An appeal pursuant to s.604 (C2022/3485) was
lodged against this decision – refer to Full Bench decision dated
15 August 2022 [[2022] FWCFB 155] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB155.htm
[2022] FWC 1240
2
Permission to appear
[7] I heard from both parties on the question of representation before the Commission.
[8] The Applicant sought to be represented by his legal counsel, Ms Ella Dalrymple. Ms
Dalrymple submitted that the matter would be dealt with much more efficiently if both parties
were represented and that the Applicant would be at a disadvantage without representation,
given the legal expertise of the Respondent compared to the Applicant who did not have legal
qualifications. The Respondent did not object to the Applicant being represented by a lawyer.
[9] The Respondent sought to be represented by its legal counsel, Mr Nico Burmeister. The
Respondent relied on s.596(2)(a) of the FW Act and submitted that the matter involves
consideration of the construction of s.394 and the facts of the matter give rise to some
complexity. The Respondent also submitted that, if representation was granted to the Applicant,
it would be unfair for the Respondent if permission to be represented was not also granted to it.
The Applicant did not object to the Respondent being represented by a lawyer.
[10] Having considered the submissions of the Applicant and the Respondent, I determined
that allowing the parties to be represented by a lawyer or paid agent would enable the matter to
be dealt with more efficiently, taking into account the complexity of the matter.
[11] Accordingly, at the Hearing, the Applicant was represented by Ms Dalrymple and the
Respondent was represented by Mr Burmeister.
Witnesses
[12] The Applicant filed a witness statement and gave evidence on his own behalf at the
Hearing. The witness statement did not turn to the reasons for the delay in the filing of the
application and rather set out matters including:
how the Applicant came to be an employee of the Respondent;
circumstances regarding the Applicant’s relationship with his colleague “Tony”; and
details of events relating to the Applicant’s colleague that concerned the Applicant.
[13] When this became apparent at the Hearing, the Respondent indicated that it was content
for the content provided by the Applicant at pages 97 and 98 of the digital court book prepared
by my Chambers, being a part of the Applicant’s outline of argument, to be treated as evidence.
The Applicant’s representative noted that this would greatly assist the Applicant and proceeded
on the basis that the submissions at pages 97 and 98, totalling 17 paragraphs, were to be treated
as evidence. The Applicant adopted this as his evidence.
[14] In this regard, and by way of summary, the Applicant’s evidence was that:
he is the co-carer of his 15 year old son and the sole primary carer of his 91 year old
frail mother who lives with him and requires constant care and supervision;
[2022] FWC 1240
3
21 days proved to be an inadequate amount of time to lodge his application when it
competed with his carer responsibilities and medical condition;
he pushed himself as hard as he could, under the influence of depression, to submit
on time and made a bona-fide attempt to submit a day earlier, but the complexity and
size of the task was too much for him;
he still thought he had submitted within the deadline;
his application was one day late, but it sat unprocessed in a Commission email
quarantine folder for 32 days until he enquired with the Commission about the status
of the application. After 40 days, he was informed that his application was one day
late;
whilst all these factors on their own may not be considered exceptional for a
successful extension of time, he believes that when all the factors are considered in
unison, they effectively can be considered as exceptional; and
the Respondent has similarly lodged their response one day out of time.
[15] During cross-examination, the Respondent took the Applicant to his unfair dismissal
application. The Applicant confirmed that he filled it out himself and filled it out truthfully. The
Applicant confirmed that he signed the application on 29 December 2021.
[16] During re-examination, the Applicant indicated that he signed the document on a hard
copy printout and scanned the document some time on 29 December 2021 but he was not sure
exactly what time. The Applicant indicated he created PDFs of the application on both 29 and
30 December 2021.
Submissions
[17] On 23 February 2022, the Commission issued directions to the parties. Those directions
relevantly included the following provisions of the FW Act:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division
4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
[2022] FWC 1240
4
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[18] The directions also included links to the Commission’s resources to assist the parties in
addressing the considerations above.
[19] The Applicant filed submissions in the Commission on 10 February 2022 and 2 March
2022. The Respondent filed submissions in the Commission on 9 March 2022.
When did the dismissal take effect?
[20] It is not in dispute and I find that the Applicant was dismissed.
[21] On 10 February 2022, the Applicant emailed the Commission and submitted that:
his final pay was not made by the Respondent until 1 February 2022 so it can be
argued that this is now the effective date of dismissal; and
if no payment in lieu of notice was made on the day of termination, his last working
day could be 8 December 2021 plus one month.
[22] Despite this, the Applicant’s submissions also appear to acknowledge the application
was made one day late and, in submissions filed on 2 March 2022 in accordance with the
Commission’s directions, the Applicant identifies 8 December 2021 as the date the dismissal
took effect. Similarly, at the Hearing, the Applicant submitted that he was dismissed on 8
December 2021.
[23] The Respondent submitted that the dismissal took effect on 8 December 2021.
[24] A dismissal does not take effect until an employee is aware that the employee has been
dismissed or has at least had a reasonable opportunity to become so aware.1 Whether an
employee has had a reasonable opportunity to become aware will necessarily turn on all the
facts of the matter.2
1 Ayub v NSW Trains [2016] FWCFB 5500, [36].
2 Foyster v Bunnings Group Ltd [2017] FWCFB 3923, [17].
[2022] FWC 1240
5
[25] On 8 December 2021, the Applicant attended an in-person meeting with the Respondent
and it was during this meeting that the dismissal was communicated to him and he became
aware of the dismissal. A dismissal letter dated 8 December 2021 was provided to the Applicant
on that same day. The letter stated:
“Termination of employment
I refer to today’s meeting with Michal Shao – NSW ITS Operations Manager and
Michael Keegan – P&C Consultant, regarding your breaches of the Transurban Code
of Conduct, Equity in the Workplace Policy, and Acceptable Use of Technology Policy.
As discussed, we have taken these breaches very seriously and your responses to the
matter presented to you during this formal disciplinary process have been given full
consideration. As a result of this review, Transurban has decided to terminate your
employment effective today, 8th December 2021. Your employment has been terminated
on notice and accordingly, you will receive payment in lieu of one month notice and any
accrued entitlements up to and including 8th December 2021…”
[26] Whether a dismissal takes effect immediately when payment is made in lieu of notice is
a question of fact.3 Where the employer’s communication is clear and there is no evidence of a
contrary intention, termination by payment in lieu of notice will result in immediate termination
of the contract of employment when the dismissal is communicated to the employee.4
[27] In the circumstances of this matter, I find that the Respondent’s communication is clear,
that it intended to terminate the Applicant’s employment effective 8 December 2021 and I find
that there is no evidence of a contrary intention.
[28] While there was a delay by the Respondent in the processing of the Applicant’s final
pay, this does not impact the effective date of the dismissal.
[29] Having regard to the above, I find that the dismissal took effect on 8 December 2021.
When was the application made?
[30] It is not in dispute, and I so find, that the application was made on 30 December 2021.
Was the application made within 21 days after the dismissal took effect?
[31] As the Full Bench has stated in relation to a general protections application but equally
applicable here, “[t]he 21 day period prescribed…does not include the day on which the
dismissal took effect.”5
3 Siagian v Sanel Pty Ltd (1994) 54 IR 185.
4 Ibid.
5 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth)
s.36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s.40A.
[2022] FWC 1240
6
[32] As I have found above, the dismissal took effect on 8 December 2021. The final day of
the 21 day period was therefore 29 December 2021 and ended at midnight on that day. As I
have found above, the application was made on 30 December 2021.
[33] As the application has not been made within 21 days of the date on which the dismissal
took effect, I need to consider whether it was made within such further period as the
Commission allows.
Section 394(3)
[34] Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair
dismissal application to be made if the Commission is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
and
(c) any action taken by the Applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the Applicant and other persons in a similar position.
[35] Each of the above matters must be considered in assessing whether there are exceptional
circumstances.6
[36] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.7
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.8 In that matter
the Full Bench held the following 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”
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
7 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288, [21].
8 [2011] 203 IR 1 at [13].
[2022] FWC 1240
7
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.”
[37] I set out my consideration of each of the matters referred to in s.394(3) of the FW Act
below.
Section 394(3)(a) – reason for the delay
[38] On 10 February 2022, the Applicant emailed the Commission and put forward a number
of reasons for the delay. On 2 March 2022, the Applicant filed submissions in accordance with
the Commission’s directions and provided further reasons for the delay. The Applicant also
made oral submissions during the Hearing and gave evidence on his own behalf. The Applicant
submitted that, whilst the factors, on their own, may not be considered exceptional, when
considered in union they can be considered as exceptional.
[39] On 9 March 2022, the Respondent filed its submissions. The Respondent submitted that:
The Applicant has not provided an adequate explanation for the delay.
The Applicant concedes that he “miscalculated the lodgement date deadline” which
he now realises is “flawed logic”.
In an attempt to explain away the delay, the Applicant has also included a long list of
possible explanations for the delay, or part of the delay, the majority of which were
not included in his application. The Respondent submitted that none of the assertions
or explanations for the delay are sufficient, alone or in combination, to satisfy the
Commission that exceptional circumstances exist.
[40] The Respondent also made oral submissions during the Hearing. The Respondent
submitted that the Applicant has “cobbled together” an “exceptional number of ordinary
circumstances” but no “exceptional circumstances arise either from any of those ordinary
circumstances or from any combination of them”.
[41] I have considered and summarised the Applicant’s submissions and evidence by theme,
as well as the Respondent’s responses.
The miscalculation
[42] The Applicant submitted:
he miscalculated the lodgement date deadline as described on the Commission’s
website; and
[2022] FWC 1240
8
for the benefit of those representing themselves, the Commission’s website should
have provided a worked example of determining the deadline date to eliminate any
ambiguity.
[43] In this regard, and by way of summary, the Applicant’s evidence was that:
he miscalculated the lodgement date deadline. At the time of filing his evidence, he
realised he applied flawed logic, but had no reason to doubt it at the time;
if he knew he was approaching the application being made out of time, he would have
requested advice or an extension, but assumed he was still within time;
if he could have filed earlier, he would have but needed all the time he thought he
had available to him; and
he made a bona fide attempt to lodge a credible application.
[44] The Respondent submitted, by way of summary:
The application was signed by the Applicant on 29 December 2021 (the last day
within the statutory limit) but was not filed with the Commission until 30 December
2021. This, coupled with the Applicant’s failure to address in his application why he
did not file the application before 30 December 2021, when the application was
completed on 29 December 2021, leaves open a finding that the Applicant knew the
deadline was 29 December 2021 but simply failed to adhere to it.
The Applicant asserts that he tried to submit the application on time but, due to the
complexity and size of the task, it was too much for him. An inference can be drawn
that the Applicant knew the last day to file the application was 29 December 2021
(despite his previous submission that he miscalculated the time period) but chose not
to do so. The Respondent submitted this is supported by the fact the application is
dated 29 December 2021.
The Applicant had a full 21 days from the date of his dismissal to file the application
but waited to the last day of his miscalculated time period to file it. The miscalculation
of time does not explain the delay.
If it is accepted that the Applicant miscalculated the timeframe for filing the
application, this mistake is not out of the ordinary, unusual, special or uncommon.
The Applicant’s medical condition
[45] The Applicant submitted he was diagnosed by his doctor with a form of depression
being adjustment disorder/anxiety and this most likely contributed to the date miscalculation
and decreased his overall mental functionality. In support of this contention, the Applicant filed:
a medical certificate dated 30 November 2021 which certified that the Applicant had
a telehealth consultation with Dr Evangelos Koumoulas and indicated that, in the
[2022] FWC 1240
9
opinion of that doctor, the Applicant would “be unfit for his normal work/school”
from 2 December 2021 to 9 December 2021;
a referral from Dr Evangelos Koumoulas to various psychologists at Good Thinking
Psychology dated 13 December 2021, which attaches a mental health assessment
describing that the Applicant was notified of suspension from work on 2 November
2021, that he has been terminated and feels like he has been unfairly dismissed. The
assessment states that the Applicant is experiencing stress from recent work events,
sleeping difficulties, poor attention and memory, weight and appetite loss and that he
is upset;
a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas
dated 17 December 2021 which provides a diagnosis of “adjustment disorder with an
anxious mood”; and
a letter from a psychologist, Peter Morcos, dated 1 March 2022, which states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy
as of the 23rd of December, 2021, to address symptoms of anxiety and depression.
These mental health concerns can impact concentration and motivation both of
which may have contributed to the delay in completing the requested letter by
the due date.”
[46] By way of summary, the Applicant gave evidence that:
he was diagnosed by his doctor with a form of depression (adjustment
disorder/anxiety) on 16 November 2021;
he is currently in the care of a psychologist who he was referred to by his doctor and
began treatment with on 23 December 2021;
he considered his state of mind most likely contributed to the date miscalculation and,
further, has severely decreased his overall mental functionality;
he has lost much of his drive and struggled to stay focused on any endeavour,
especially the application which he considered complex;
his sleep was severely disturbed; and
delays in receiving his final payment aggravated his mental state and caused him to
waste time chasing the payment up.
[47] The Respondent submitted:
The medical evidence does not support the Applicant’s submission that his medical
condition contributed to the miscalculation. The mental health assessment dated 13
December 2021 lists the Applicant’s “Thinking, Perception, Cognition, Attention/
Concentration, Memory, Judgement and Insight” as all “ok”. The Respondent
[2022] FWC 1240
10
submitted that if the Applicant’s medical condition contributed to the miscalculation
of the timeframe for the filing of the application, the Applicant would likely have
been assessed as other than “ok” in relation to these indicators.
The medical evidence submitted by the Applicant does not explain the entire period
of the delay in filing the application. The medical certificate dated 30 November 2021
from Dr Evangelos Koumoulas states he is unfit for work from 2 December to 9
December 2021. This certificate accounts for only one date of the period during
which the Applicant could have filed the application. The mental health assessment
dated 13 December 2021 does not prescribe a period of incapacity and so does not
account for any of the period of the delay.
The Applicant’s submission that the delay in receiving his termination payment
aggravated his depressive state is unsupported by medical evidence.
[48] During the Hearing, the Respondent addressed the medical evidence provided by the
Applicant in further detail, in relation to:
a medical certificate of Dr Evangelos Koumoulas which stated that, for the period
between 2 December 2021 to 9 December 2021, the Applicant was “unfit for his
normal work/school”;
a medical certificate of Dr Evangelos Koumoulas which stated that, for the period
between 10 December 2021 to 18 December 2021, the Applicant was “unfit for his
normal work”; and
a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas
dated 17 December 2021.
[49] The Respondent submitted that the restrictions referred to in these documents do not
render the Applicant incapable of filing an unfair dismissal application. In this regard, the
Respondent referred to the decision of Deputy President Sams in Underwood v Terra Firma
Pty Ltd9 in which the Deputy President said:
“[10] After considering all the material in this matter, I am not persuaded that either of
the reasons given by the applicant constitute an ‘exceptional circumstance’ within the
meaning of s 394(3) of the Act. To my mind, it is significant that the dates identified in
the medical certificate between which the applicant was deemed unfit for work/study,
are well after the 21day time limit by which he was required to lodge his unfair dismissal
application and some two months after his dismissal. The medical certificate deems the
applicant ‘unfit for work/study’. However, such a restriction does not necessarily equate
to rendering the applicant incapable of lodging his unfair dismissal application or
rendering him incapable of otherwise conducting day to day activities.”
9 [2015] FWC 1387, [10]. Note this matter was appealed with a Full Bench finding in [2015] FWCFB 3435 that the Deputy
President “properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not
positively demonstrate the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from
lodging the application within the 21 day time frame”, [16].
[2022] FWC 1240
11
[50] The Respondent submitted that all the documents referred to above state that the
Applicant is unable to work but that the Applicant does not bridge the gap between not being
able to work and not being able to complete an unfair dismissal application.
[51] The Respondent submitted that the closest the Applicant comes to bridging that gap is
a letter dated 1 March 2022 from Peter Moros of Good Thinking Clinical Psychology which
states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy as of the
23rd of December, 2021, to address symptoms of anxiety and depression. These mental
health concerns can impact concentration and motivation both of which may have
contributed to the delay in completing the requested letter by the due date.”
[52] The Respondent submitted that this evidence, if led in support of a submission that the
mental health of the Applicant caused the delay, is pure speculation due to:
the use of the words “can impact” and “may have contributed” (Respondent’s
emphasis);
the letter appearing to suggest that the writer does not know what they were asked to
opine about as evidenced by the reference to a requested “letter”. The Respondent
submitted that the Applicant was not tasked with filing a letter with the Commission
and as such it cannot be known what the letter was about; and
the substance of the letter being that the mental health conditions might have some
impact upon the ability to write a letter.
[53] The Respondent submitted that this evidence does not establish that the Applicant’s
medical condition had any impact upon his ability to file his application. In this regard, the
Respondent referred to the appeal decision in Underwood v Terra Firma Pty Ltd10 where the
Full Bench of the Commission stated:
“[16] We consider that the Deputy President properly considered the medical evidence at
paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate that
the Appellant’s depressive illness had an impact on his mental capacity so as to prevent
him from lodging the application within the 21 day time frame. At best, the letter recited
the Appellant’s own assessment of his inability to have lodged the application within
time.”
[54] In that case, the Full Bench referred to the Deputy President’s decision at first instance,
in which the Deputy President said:11
“[11] I also note that Ms Cheung’s letter states that the applicant ‘indicated he was unable
to lodge the application within the required timeframe’. In other words, Ms Cheung did
not clinically diagnose the applicant as being unable to file his unfair dismissal
10 [2015] FWCFB 3435, [16].
11 [2015] FWC 1387, [11].
[2022] FWC 1240
12
application. Rather, she simply repeated what the applicant told her about his self
assessment of his alleged psychological incapacity to lodge an unfair dismissal
application during the relevant 21 day period. I also observe that Ms Cheung stated that
the applicant only began psychological consultation on 20 November 2014; some 30
days after the statutory time limit for filing his application has expired.”
[55] The Respondent submitted that it is a positive demonstration of the illness and its impact
that is required. The Respondent submitted that the evidence does not demonstrate that the
illness had an impact on the Applicant’s mental health capacity that prevented him from filing
his application on time.
[56] The Respondent submitted that, in any event, even after his diagnosis, the Applicant
managed to maintain a level of mental fitness that was enough to engage in various
correspondence during the 21 day period and that this is established by the evidence including:
the Applicant’s evidence that he contested the dismissal immediately afterward by
articulating that it was unreasonable and unjust;
the Applicant was able to engage in correspondence with the Respondent about his
final pay between 8 December 2021 until 24 December 2021; and
the Applicant was able to engage in correspondence with his lawyer.
[57] The Respondent submitted that this is consistent with evidence about the Applicant’s
mental health in the mental health assessment dated 13 December 2021 (five days after the
dismissal) in which the mental status examination provides the following responses to various
prompts:
Appearance and General Behaviour
ok
Mood (Depressed / Labile)
labile
Thinking (Content / Rate / Disturbances)
ok
Affect (Flat / Blunted)
flat
Perception (Hallucinations etc)
ok
Sleep (Initial Insomnia /Early Morning
Wakening) disturbed
Cognition (Level of Consciousness /
Delirium / Intelligence)
ok
Appetite (Disturbed Eating Patterns)
ok
Attention / Concentration
ok
Motivation / Energy
labile
Memory (Short & Long term)
ok
Judgement (Ability to make rational
decisions) ok
Insight
ok
Anxiety Symptoms (Physical & Emotional)
both
Orientation (Time / Place / Person)
orientated
Speech (Volume / Rate/ Content)
ok
[2022] FWC 1240
13
[58] The Respondent submitted that, at the very best, as at 13 December 2021, the Applicant
was having trouble sleeping and was anxious but the rest of the faculties were “ok” according
to the medical practitioner. The Respondent submitted that:
any medical condition that there was evidence of was not of a level that must
inherently mean that the Applicant couldn’t complete an unfair dismissal application;
and
in any event, there is no evidence of the connection between the medical condition
and the requirement to file on time as is required by Underwood v Terra Firma Pty
Ltd, both at first instance and on appeal.
Complexity
[59] The Applicant submitted it was unclear from the Commission’s website whether he
should make a general protections or unfair dismissal claim.
[60] In this regard, and by way of summary, the Applicant’s evidence was that:
it was not clear to the Applicant from the Commission’s website whether it was more
appropriate for him to follow the General Protections or the Unfair Dismissal path;
and
after much consternation, which added to further unforeseen delays, the Applicant
chose to make an unfair dismissal application because the application process
appeared simpler and he was running out of time.
[61] The Respondent submitted that it is not uncommon for employees to have to choose
between bringing a general protections or unfair dismissal claim, both of which must be lodged
within 21 days of dismissal. The Applicant’s indecision about whether to make a general
protections application or unfair dismissal application is not out of the ordinary.
[62] The Applicant also submitted and gave evidence that:
he never planned to file on the deadline but preparing the case proved complex and
involved historical accusations. This required significant research of the
Respondent’s relevant codes and policies; and
he believed he was required to present all his arguments concisely and with
documentation at the time of lodgement and ultimately consumed all the time he
thought he had available to him. The Applicant supplied over 15 attachments with his
application.
[63] The Respondent submitted that:
the Applicant was dismissed for breaching the Respondent’s policies and on account
of his behaviour and not for any other reason and, as such, disputes the Applicant’s
[2022] FWC 1240
14
assertion that it was “complex” for him to prepare the application and/or that he was
required to conduct significant research to prepare it; and
in any event, many applicants with even the most complex dismissal cases have
managed, and continue to manage, to file their applications within 21 days of
dismissal.
Issues concerning the Commission
[64] The Applicant submitted that:
The Commission’s online lodgement system was down after Christmas, which
required the Applicant to get access to a working printer and scanner to complete the
application process via email. The Applicant submitted this caused further unforeseen
delays at the critical deadline time.
For unknown operational reasons on the Commission’s side, the Applicant’s “one-
day-late application was held in a 32-day abeyance, and only released” when he rang
the Commission on 2 February 2022 seeking a status update on his application. The
Applicant submitted that this “serves to illustrate that with all good intentions from
all parties, events can be commandeered by exceptional circumstances”.
The Commission’s website now has an example as to how to calculate the last date
for filing and did not at the time the Applicant was attempting to draft his application.
[65] The Applicant also gave evidence that:
he recalls from the Commission’s website and from a telephone conversation with
the Commission in the days before he lodged that online lodgement was offline for
maintenance from Christmas eve until January 2022, and that email was the only form
of lodgement;
the Form F2 application the Applicant had was in PDF form and he could not edit it
so printed it, handwrote the answers and scanned it; and
he does not have a scanner and had to reach out to a friend. This caused the Applicant
further unforeseen delays approaching the critical deadline date.
[66] The Respondent submitted, by way of summary:
it is not aware that the Commission has an online lodgement system and is only aware
of unfair dismissal applications being lodged by emailing the Commission or
providing a physical copy to the registry. However, if the Commission does have an
online lodgement system which was down from Christmas Eve until January 2022,
as the Applicant contends, this occurred 16 days after the dismissal on 8 December
2021;
[2022] FWC 1240
15
there was no suggestion from the Applicant that the application was not available on
the Commission’s website and it is not extraordinary if the version of the application
on the website was not the preferred version of the Applicant;
the Respondent understands that individuals can always access both word and PDF
versions of the unfair dismissal application on the Commission’s website. The
Respondent is unaware whether the Commission’s website only had a PDF version
of the application form available when the Applicant sought to download a copy to
prepare the application (some time on or after 24 December 2021). However, in any
event, the Applicant had ample time to obtain a copy of the application form, and
prepare and file his application prior to 24 December 2021; and
given the application was completed by and dated 29 December 2021, the Applicant
still had time to submit it within the 21-day timeframe after he became aware the
online lodgement system was down.
The “festive season”
[67] The Applicant submitted the 21 day timeframe is probably not sufficient considering it
also covers the festive season.
The duration of the delay
[68] The Applicant submitted:
the application was only one day late due to an honest mistake “most likely attributed
to [the Applicant’s] frail and impaired state of mind at the time”; and
the application was “technically only half a day late”.
[69] The Respondent submitted, by way of summary, that the Applicant did not adhere to the
statutory time period and filing “only” one day late does not cure the delay.
Access to documentation
[70] The Applicant’s evidence was that not having access to company emails and Webex
conversations from the time the Applicant was suspended was frustrating to the Applicant and
“significantly delayed and stymied the gathering of evidence to refute the dismissal”.
[71] The Respondent submitted, by way of summary:
the Applicant did not request information or documentation from the Respondent so
there can be no assertion that a lack of access to the Respondent’s emails and Webex
conversations delayed his ability to gather evidence for his application; and
it is unclear what information and documentation the Applicant is referring to, how
he eventually obtained it and how this contributed to the delay.
[2022] FWC 1240
16
Legal representation
[72] The Applicant submitted, by way of summary:
On 6 December 2021, he engaged a law firm to act as his support person at an
“outcome of investigation” meeting with the Respondent on 7 December 2021.
After the Applicant was dismissed, he sought further advice from the firm but was
displeased with their slow responses.
On 24 December 2021, the law firm advised the Applicant to file his own application
as they were shutting down for Christmas.
As it was Christmas Eve, all lawyers were closed for the rest of the year and the
Applicant was forced to complete the application with no legal advice.
Had he engaged a lawyer he would have been made aware of the correct deadline and
“should not be punished for going it alone”.
[73] In closing submissions during the Hearing, the Applicant clarified that he did not submit
that the withdrawal of representation by the lawyer was inappropriate and conceded that this
happened five days prior to the timeframe for the making of the application. However, the
Applicant submitted that this needs to be considered in the context of the Applicant’s
circumstances.
[74] The Applicant also submitted that he was suffering a medical condition and referred to
Lock v General Assembly Australia T/A General Assembly12 in which DP Gostencnik said, in
relation to the consideration of fairness between the Applicant and other persons in a like
position, “where a medical condition is established by evidence as having, or likely to have had,
an impact on the capacity of an applicant to lodge an application within time, this has been
accepted by the Commission as providing a satisfactory explanation for the delay in other
cases”. The Applicant submitted it is relevant that his capacity to understand, in circumstances
in which he thought he was to be provided with legal assistance in filing his application up until
24 December 2021, and thereafter realised he would have to “go it alone” so to speak, which
on top of his diagnosed medical condition contributed to the flawed logic.
[75] In this regard, and by way of summary, the Applicant’s evidence was that:
on 6 December 2021, he approached a legal firm, Segalov-Taylor, to act as his
support person at the “outcome of the investigation” meeting on 7 December 2021;
after his termination he sought further advice from this firm, but was displeased with
their general apathy and slow responses to his email questions. In particular, the
Applicant’s evidence was that he had no response to three emails over 10 days
between 14 and 24 December 2021;
12 [2015] FWC 6036, [27].
[2022] FWC 1240
17
on 24 December 2021, the law firm advised him to file his own application as it was
shutting down for Christmas; and
as it was Christmas Eve, all lawyers were closed for the rest of the year and the
Applicant was forced to complete the application himself with no legal advice at
hand.
[76] The Respondent submitted, by way of summary:
that 24 December 2021 is 16 days after the date of the Applicant’s dismissal and it is
clear from the date of the application, being 29 December 2021, that the Applicant
had resolved to make an unfair dismissal claim and managed to prepare it in less than
five days; and
to the extent that the Applicant submitted that the lawyer who attended the dismissal
meeting with him refused or failed to provide satisfactory services to him and that
this somehow contributed to the delay, these submissions should be wholly rejected
and disregarded. The Respondent submitted that the submissions on this issue are
based on hearsay and the Commission does not have the benefit of hearing from the
lawyer in question as to the advice actually provided.
[77] During the Hearing, the Respondent addressed the issues the Applicant raised in relation
to his lawyer. The Respondent submitted that:
as the lawyer had not been called by the Applicant to give evidence, an inference
should be drawn that anything that lawyer might have said would not have assisted
his application; and
there is a difference between representative error where the employee is blameless
and a delay that involves a representative where the employee has contributed to the
delay and it is the actions of the employee that are central in this regard.
[78] During the Hearing, the Respondent also submitted that the evidence before the
Commission in relation to this issue is limited. The Respondent submitted that the evidence
does appear to show that emails were sent from the Applicant to the lawyer, however there is
no evidence regarding what those emails are about as the emails are not included in the
evidence. The Respondent submitted that, as such, the Commission should give this issue very
little if any weight.
[79] The Respondent made a similar submission in relation to the telephone calls the
Applicant says he made to the lawyer. The Respondent submitted that there is evidence of a 29
minute phone call but there is no evidence as to what was said in that phone call.
[80] The Respondent also submitted that there is no evidence to support the Applicant’s
submission that all lawyers shut on Christmas Eve.
[2022] FWC 1240
18
Caring responsibilities
[81] The Applicant submitted that the 21 day timeframe proved to be an inadequate amount
of time to lodge a complex unfair dismissal application when it competed with the Applicant’s
caring responsibilities and medical condition.
[82] In this regard, and by way of summary, the Applicant’s evidence was that:
he is the co-carer of his 15 year old son and the sole primary carer of his 91 year old
frail mother who lives with him and requires constant care and supervision; and
21 days proved to be an inadequate amount of time to lodge his application when it
competed with his carer responsibilities and medical condition.
[83] The Respondent submitted, by way of summary:
the Applicant has failed to explain how his caring responsibilities caused the delay;
and
the Applicant was able to prepare his outline of argument for his extension of time
application within time and his caring responsibilities did not appear to have hindered
his ability to do so.
Consideration
[84] For the application to have been made within 21 days after the dismissal took effect, it
needed to have been made by midnight on 29 December 2021. The delay is the period
commencing immediately after that time until the application was made on 30 December 2021,
although circumstances arising prior to that delay may be relevant to the reason for the delay.13
[85] The reason for the delay is not in itself required to be an exceptional circumstance. It is
one of the factors that must be weighed in assessing whether, overall, there are exceptional
circumstances.14
[86] The absence of any explanation for any part of the delay will usually weigh against an
applicant in the assessment of whether there are exceptional circumstances, and a credible
explanation for the entirety of the delay will usually weigh in the applicant’s favour, however
all of the circumstances must be considered.15
[87] The FW Act does not specify what reason for delay might tell in favour of granting an
extension. However, decisions of the Commission have referred to an acceptable or reasonable
explanation.
13 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
14 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
15 Ibid.
[2022] FWC 1240
19
The miscalculation
[88] The Applicant’s application is signed and dated 29 December 2021 but was filed on 30
December 2021. The Applicant’s evidence is that he miscalculated the timeframe for making
an application. I do not consider that this is in itself a reason that weights in favour of an
extension of time.
[89] If there was an absence of a worked example on the Commission’s website as to how to
determine the deadline for filing, this is a circumstance that all applicants for unfair dismissal
would have confronted and, had the Applicant needed clarification, he could have called the
Commission.
The Applicant’s medical condition
[90] The Applicant submits that he was suffering from a form of depression (adjustment
disorder plus anxiety) and this most likely contributed to the date miscalculation and decreased
his overall mental functionality.
[91] The stress that accompanies a dismissal will not, without more, favour a finding of
exceptional circumstances. Where there is medical evidence that stress or some other condition
affected an applicant in such a way as to cause, contribute or explain the delay, such evidence
may, depending on all the circumstances, weigh in favour of the Commission being satisfied
that exceptional circumstances exist.16
[92] However, each case turns on its own facts. There are no categories of illness or disability
that will automatically result in the Commission being satisfied that exceptional circumstances
exist.17
[93] Further, evidence of hardship and misfortune will not, in and of itself, necessarily weigh
in favour of a finding of exceptional circumstances. Of significance is evidence that establishes
that, as a result of such hardship and misfortune, the applicant was prevented from or seriously
impeded in lodging their unfair dismissal application.18
[94] I have considered the medical evidence provided by the Applicant including:
a medical certificate of Dr Evangelos Koumoulas which stated that, for the period
between 2 December 2021 to 9 December 2021, the Applicant was “unfit for his
normal work/school”;
a medical certificate of Dr Evangelos Koumoulas which stated that, for the period
between 10 December 2021 to 18 December 2021, the Applicant was “unfit for his
normal work”; and
16 Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].
17 Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758,
[37].
18 Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016]
FWCFB 5472, [22].
[2022] FWC 1240
20
a certificate of capacity/certificate of fitness issued by Dr Evangelos Koumoulas
dated 17 December 2021.
[95] These documents do not establish that the Applicant was prevented from or seriously
impeded in lodging his unfair dismissal application on time.
[96] I have also considered the letter dated 1 March 2022 from Peter Moros of Good
Thinking Clinical Psychology, which states:
“This letter is to certify that Mr George Georgiou has been engaging in therapy as of the
23rd of December, 2021, to address symptoms of anxiety and depression. These mental
health concerns can impact concentration and motivation both of which may have
contributed to the delay in completing the requested letter by the due date.”
[97] I am not satisfied that this document establishes that the Applicant was prevented from
or seriously impeded in lodging his unfair dismissal application on time. The practitioner refers
to a “delay in completing the requested letter by the due date”. It does not refer to the delay in
completing an unfair dismissal application. Even if it is inferred that this is what the practitioner
meant, the practitioner uses qualifying language such as “can impact” and “may have
contributed”. The practitioner does not say that it did impact or contributed to the Applicant’s
ability to complete a letter or even that it was likely to have done so. The evidence also
establishes that the Applicant has been able to undertake other activities in relation to the
termination of his employment, in particular, corresponding with the Respondent in relation to
his final pay.
[98] While the Applicant was suffering from a medical condition and I have sympathy for
his circumstances, I do not accept that this prevented him from filing his unfair dismissal
application on time.
Complexity
[99] While the Applicant submits that preparing his case proved complex and required
significant research in relation to the Respondent’s codes and policies, I am not persuaded that
this factor in itself contributed to the delay in making the application on time. The application
form itself is not a complex document to complete. Further, the decision as to whether to make
an unfair dismissal application or another form of application involving dismissal is a decision
that confronts many applicants. As noted by DP Asbury in Martin v Kancee Pty Ltd T/A GT
AIR,19 with reference to the decision of the Full Bench in Arch v Insurance Australia Group
Services Pty Limited,20 even an incomplete application or an application made in the wrong
form will not necessarily be invalid and such an application made within time is capable of
being accepted without the need for the grant of a further period to rectify deficiencies in form
or content.
19 [2020] FWC 1737, [27].
20 [2018] FWCFB 975, [39]-[41].
[2022] FWC 1240
21
Issues concerning the Commission
[100] There is no suggestion made by the Applicant that an unfair dismissal application was
not available for him to complete in some form, accessible from the Commission’s website.
While the Applicant may have considered that the need to complete a PDF form was less
convenient that other means of form completion, that this was not his preferred method of
application completion is not an adequate explanation as to why he did not make the application
on time.
[101] Further, the Applicant’s submission that his late application was held in a 32-day
abeyance, and only released when he rang the Commission on 2 February 2022 seeking a status
update on the application, does not prevent the application from being made late. The
processing of the application by the Commission took place after the application was filed on
30 December 2021 and this is not, therefore, a matter relevant to the extension of time
application.
[102] Further, if there was an absence of a worked example on the Commission’s website as
to how to determine the deadline for filing, this is a circumstance that all applicants for unfair
dismissal would have confronted. Had the Applicant needed clarification, he could have called
the Commission. I am not persuaded that this factor in itself contributed to the delay in making
the application on time.
The “festive season”
[103] While the last date for filing may have fallen at an inconvenient time for the Applicant,
I do not accept that this prevented him from filing his unfair dismissal application on time.
The duration of the delay
[104] The fact that the application was filed half a day late does not cure it from being late
and does not weigh in favour of a finding of exceptional circumstances. As Deputy President
Gostencnik noted in Ozsoy v Monstamac Industries Pty Ltd:21
“Whilst I accept that the application lodged by the Applicant was late by only one day,
that is not to the point. The length of the delay says nothing or very little about whether
there are exceptional circumstances.”
[105] While the application was only one day late, I note that numerous decisions of the
Commission have refused to allow a one-day extension in time to file an application.22
Access to documentation
[106] I am not persuaded that not having access to company emails and Webex conversations
from the time the Applicant was suspended resulted in a delay in submitting the application.
The evidence does not establish this. There is no evidence that the Applicant sought such
21 [2014] FWC 479, [30].
22 See for example Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd
[2021] FWC 530.
[2022] FWC 1240
22
documentation from the Respondent. The application could have been made and the Applicant
could have sought this information once the application was made, either through an application
for an order for production or otherwise.
Legal representation
[107] I am not satisfied that the evidence provided by the Applicant suggests error on the part
of the Applicant’s legal representative. The emails between the Applicant and his representative
have not been produced and the legal representative informed the Applicant on 24 December
2021 that he would need to make his own application, five days prior to the last day for the
making of an application. The Applicant has not produced evidence that all law firms ceased
operation on 24 December 2021 for the Christmas period and, even if they had, this would not
have prevented the Applicant from making his own application.
Caring responsibilities
[108] While the Applicant may have caring responsibilities, he has not provided an adequate
explanation as to how his caring responsibilities caused the delay.
Conclusion
[109] I have considered the reasons for the delay provided by the Applicant, both individually
and in combination, together with the evidence turning to those reasons. I do not consider that
the reasons, either individually or in combination, provide a credible explanation for the delay.
The lack of a credible explanation for the delay in filing the application is a matter that weighs
against the exercise of the discretion to grant a further period for the application to be made.
Section 394(3)(b) – whether the Applicant first became aware of the dismissal after it had
taken effect
[110] The Applicant first became aware of the dismissal on 8 December 2021, the date it took
effect. During the Hearing, the Applicant submitted that no reliance was placed on this by the
Applicant. There was no confusion or lack of clarity which could have contributed to the delay
and this is a factor that weighs against the exercise of the discretion to grant a further period for
the application to be made.
Section 394(3)(c) – any action taken to dispute the dismissal
[111] The Applicant submitted that he verbally informed the Respondent, just after his
dismissal, that he believed the dismissal was unreasonable and unjust and that he intended to
explore his legal options. In closing submissions during the Hearing, the Applicant submitted
that this was established in the evidence and that the Applicant made it clear that he disagreed
with the Respondent’s decision to dismiss him. The Applicant submitted there is no evidence
to dispute that.
[112] The Respondent submitted that, other than the application, there is no relevant material
before the Commission on this matter. During the Hearing, the Respondent further submitted
that a protestation the day after the dismissal that it is was unfair is not enough, is not causative
[2022] FWC 1240
23
of any delay in the making of the application and does not support an application that
exceptional circumstances exist. The Respondent noted that this is not a matter where the
application was commenced in the wrong place or that the Applicant had commenced some
form of negotiation with the Respondent.
[113] Where an applicant takes action to contest a termination, it will put the employer on
notice that its decision to terminate the applicant’s employment is actively contested and may,
depending on all the circumstances, favour the granting of an extension of time.23
[114] I accept that, just after the dismissal, the Applicant told the Respondent he believed the
dismissal was unreasonable and unjust and that he intended to explore his legal options.
However, there is no evidence that the Applicant went further than this to dispute his dismissal.
In the circumstances of this matter, I consider this to be a neutral factor.
Section 394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
[115] The Applicant submitted that a delay of one date would not cause prejudice to an
organisation of the Respondent’s size.
[116] The Respondent accepted that it does not suffer any prejudice by reason of the delay,
however referred to Grant v CSL Limited T/A Bio CSL24 in its submission that absence of
prejudice alone is an insufficient basis for granting an extension of time. During the Hearing,
the Respondent took issue with the Applicant’s submission that the absence of prejudice weighs
in favour of the granting finding of an extension of time and referred to Ittyerah v Coles
Supermarkets (Australia) Pty Ltd (No 2)25 in which Abraham J said:
“73. The contention put by the applicant is that a lack of prejudice to the employer must
always favour the grant of an extension. As explained above at [35]-[36], there is no
basis in the text of the provision, or authority which supports that.
74. The Full Bench considered and rejected the submission at [35]-[38]:
[35] Mr Ittyerah submits that a finding under s.394(3)(d) that there is no
prejudice to the employer must always weigh in favour of the applicant for an
extension of time and need not be considered a neutral factor as the Deputy
President found.
[36] This issue was considered by the Full Bench in Gail Miller v DPV Health
Ltd (Hume) (DVP Health) where the Full Bench made the following
observations at [21]:
“[21] … However, bearing in mind that the relevant task is to consider
whether the requisite exceptional circumstances exist, whether a lack of
prejudice to the employer weighs in favour of such a conclusion or not will
23 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
24 [2015] FWC 135, [27].
25 [2021] FCA 412, [73]-[76].
https://jade.io/article/219194/section/515346
[2022] FWC 1240
24
vary depending on the circumstances of the case. There is no necessary
single conclusion which will apply in that respect. Where the delay
involved is very short, as here, it will usually be entirely unsurprising that
there is a lack of prejudice to the employer, and thus this will likely not
weigh in favour of a finding of exceptional circumstances. As was stated
by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd, a case
likewise involving a delay of one day:
“[38] Ground 9 was an assertion that the absence of prejudice should
have been found to be a positive consideration and not a neutral one.
It identifies no error. The absence of a prejudice to the employer is
usual in extension of time matters and does not provide a positive
basis for finding exceptional circumstances warranting an extension
of time for lodgement.”
[22] However in other circumstances, such as where the delay is a long
one and the case will require multiple witnesses to be called to resolve
contested factual issues, a conclusion that the delay would not cause
prejudice to the employer might well weigh in favour of a finding of
exceptional circumstances. It will all depend on the facts of the case. That
different conclusions on this score have been reached in different decisions
is not demonstrative of any disharmony on a question of principle. No
arguable case of error in respect of the Deputy President’s conclusion as
to s 394(3)(d) is discernible.”
[37] Nothing put by Mr Ittyerah supports any arguable case that the Deputy
President’s conclusion concerning this statutory criterion involved an error of
law. To the contrary, it is consistent with the Full Bench authority in DVP
Health and that of the Full Bench in Ozsoy v Monstamac Industries Pty Ltd as
set out above, and we see no reason why this Full Bench would take a contrary
view.
[38] Further, the guiding principles set out in Hunter Valley relied upon by
Mr Ittyerah are not authority for the proposition that no prejudice to the
employer must weigh in favour of an applicant for an unfair dismissal remedy.
75. As is plain, the authorities reflect that it is a matter of weight, which is fact specific
to the particular case. The applicant’s repeated claims that authorities which are against
his submission are incorrect, does not necessarily make them so. The discussion
in Miller and Ozsoy accords with the ordinary and uncontroversial principle, that the
weight to be given to any factor depends on the particular facts of each case: see [36]
above.
76. This ground is not established.”
[117] The delay in filing the application is a delay of one day. I cannot identify any prejudice
that would accrue to the Respondent if an extension of time were to be granted. A lack of
https://jade.io/article/391434
https://jade.io/article/219194/section/515346
https://jade.io/article/391434
https://jade.io/article/193555
https://jade.io/article/391434
[2022] FWC 1240
25
prejudice to the employer does not necessarily weigh in favour of concluding that exceptional
circumstances exist.26 I consider this a neutral factor in the context of this matter.
Section 394(3)(e) – the merits of the application
[118] On 3 November 2021, the Applicant sent an email to a colleague who was retiring and
copied his manager. This email was filed by the Applicant with his submissions and stated
(images omitted):
“Dear Tony
It would be remiss of me to allow you to end your employment with Transurban on your
own terms.
I will say this, with you gone, TU is in much safer hands.
Based on what I saw, you were unchallenged when it came to exposing ITS OPS to risk.
How fortuitous to be on call in parallel with you for several months. Pager Duty was
your undoing. Every night, I would observe half dozen alarms acknowledged during the
night with no notes. You never got out of your warm bed. Had Hammondville plaza gone
down, you would still be snoring. Come morning, you resolve them all as a batch, adding
“Low traffic working as expected”. Bingo! You have 2 hours TIL for 15 mins work.
Even “Rear no Reads” got your “Low traffic” treatment! You even resolved some of my
Region2 incidents by mistake during your haste and daze.
Further, your Daily/Weekly/Monthly checks were just a motion of ticking boxes with
little snips. I observed on multiple occasions when you were On-Call, AM and PM
weekend checks were performed sometimes the next day, or even early Monday
morning.
You did however enter time down for performing all of them.
Photo showing no editing to Daily check sheet from Sat 4:17PM till Sun 11:01pm.
…
You displayed total ineptness to your job. You simply don’t have an engineering bone
in your body.
In the 2.5 years at TU, I did not see one document, email, message from you that
indicated you had some mastery of the topic at hand. Far from it, I am yet to see a
document from you that was not littered with grammatical errors.
Your interaction on group webex is best described as comatose.
Through the generosity and patience of your colleagues, and especially your manager,
you were supported and protected.
And how did you repay them for keeping you afloat?
26 Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890, [21].
[2022] FWC 1240
26
By fudging and rorting your timesheets. You were always a clock-watcher, but since
Covid, without fail, you would always be onsite for 30 minutes less per day than you
claimed to be. It’s not even that you put in extra hours, you didn’t. Whilst everyone was
working 40+ hrs per week, you were doing 35 max. Effectively, offloading work onto
your colleagues. What an ungrateful man you are Tony! You have been an
embarrassment to me since you started, and I reminded you of this on a couple of
occasions. I won’t go into other petty personal details, suffice to say you never made
any attempt to improve yourself from the Tony I had known 8 years prior.
See below “small” selection of photos showing timesheet fraud:
Claimed arrival: 8:44AM Actual arrival: 9:04AM
…
Claimed arrival: 8:22AM Actual arrival: 8:48AM
…
Claimed arrival: 8:53AM Actual arrival: 9:22AM
….
Claimed arrival: 8:37AM Actual arrival: 9:18AM
…
Claimed departure: 5:15PM Actual departure: 4:57PM
…
Claimed arrival: 8:36AM Actual arrival: 8:57AM
…
Claimed departure: 12:59PM Actual departure: 12:27PM
…
“Grab some milk on the way home will you dear”
…
And finally todays grand entrance:
Claimed arrival: 7:52AM Actual arrival: 8:11AM
…
[2022] FWC 1240
27
I think I have provided you with enough photos spread over a considerable period of
time to put to bed any One-Off excuses. Plenty more happy snaps available on request!
You saved your best work for tunnel night shifts. You hatched a plan where you would
go home say 2:30am, then send your shift report when you get home 30 mins later
followed by “AR out M2”. And you think I wasn’t on to you?
Your modis operandi has always been, from the time you start work in the morning, is
to focus on finish time, and the path of least resistance to get there.
Tony, can you also explain to me how a 9am starter before Covid, becomes an 8am
starter after Covid when wfh? (assuming 20 min drive). One explanation is you wound
back your alarm clock 30 mins. The other is fraud.
Covid has given you opportunities which you have gladly exploited.
But the most extraordinary aspect was when I confronted you on a couple of occasions
about your work ethic and your rorting of timesheet and TIL, you simply replied “I work
my guts out, I’m constantly working back till 6-7pm”. Little did you know that I knew
the hours you were keeping.
You had no idea the battles I fought internally when undertaking TU ethics training.
Knowing a colleague was rorting his timesheet, his TIL and I did not report it. How did
you feel about taking the ethics course Tony??
You don’t just owe me once when I opened TU doors for you 2.5 years ago, you owe me
twice as I should have reported you 1 year ago, but allowed you collect a very good
salary in the meantime. You are the most ungrateful, unethical and shameless person I
have ever met.
Interestingly, something must have occurred mid-year (approx June 21) whereupon for
a period of 2-3 weeks, you entered correct times. Well blow me down! I would assume
someone had read out some riot act to you? However 2-3 weeks was your max limit and
you returned to your corrupt ways. This behaviour confirms that you are a
“conscientious” rorter, and no other excuse can cut through.
Take note Tony, although it may now be a bit late for you. If you didn’t piss people/me
off, you may have possibly got away with it undetected.
You obviously haven’t read Frank Abagnale’s book have you? You taunted me, but I
always knew it was just a matter of time before you were caught out and exposed.
And remember, you did all this all by yourself, to yourself!
Good riddance to bad rubbish.”
[119] The email included various attachments, including timestamped images of the
Applicant’s colleague leaving and entering the workplace as well as time and attendance
records. The Applicant does not deny that the email was sent.
[2022] FWC 1240
28
[120] A Webex conversation between the Applicant and his colleague also came to the
attention of the Respondent. The exchange occurred on 7 July 2021 and read as follows:
Applicant’s colleague:
“Hi George,
i didnt end up using the media converter you gave me as was 4 port i will drop it off at
LCT we found a used one”
Applicant:
“I don’t know how many times I asked for it back. What is wrong with you?”
Applicant’s colleague:
“nothing we tried to use but it was too large physically
we have ordered 5 more 10 week turn around”
Applicant:
“No thanks, no apology. Typical! Don’t ever ask me for any favours. (It’s not as if you
don’t owe me already)”
Applicant’s colleague:
“i did say sorry when i saw you last !!”
Applicant:
“You have a guilt complex? I’m saying sorry for not returning the server. All I can say is
I’m so happy your not in my team”
Applicant’s colleague:
“where do you want it Renjith said he can leave it in the compatus at LCT”
Applicant:
“When you picked up the server at CCT and I dressed you down, you mentioned the fact
that I referred to Romesh and yourself as my favourite colleagues. Yes, I said that, but
it just goes to show how much you have fallen in my eyes. You are a lazy disgrace.”
Applicant’s colleague:
“You are making false accusations and your opinion is untrustworthy as you have
shown”
[2022] FWC 1240
29
Applicant:
“Read the room Tony. Time to retire!”
Applicant:
“Give the job to someone who is young and hungry”
[121] On either 4 or 5 November 2021, the Applicant was suspended pending an investigation.
The Applicant submits this investigation was biased.
[122] On 10 November 2021, the Applicant attended a meeting with the Respondent as a part
of this process.
[123] A disciplinary process followed and, on 7 December 2021, the Applicant met with the
Respondent.
[124] On 7 December 2021, the Applicant wrote to the Respondent in response to allegations
made in connection with conduct towards his colleague. The Applicant’s response read as
follows:
“Dear Michael,
I refer to your letter to me of 4 November and the various allegations made against me
in connection with my conduct towards Tony Rayment. I also refer to my meeting with
you and Michael Keegan and my subsequent suspension.
You will be aware that on the 16th of November I provided Transurban with a medical
certificate, which provided that I was unfit for work for the period 16/11/21 to 09/12/21.
I am now feeling a great deal better. I have been able to use the time of my illness to
reflect upon what has occurred, and in particular my behavior in the last months.
I have identified that my behavior was inappropriate and did not meet my expectations
for how I should conduct myself. I apologise without reservation to you, and to
Transurban generally. While I retain concerns about his conduct, I also apologise to
Tony Rayment for my behavior.
I provide this apology without limitation. I do, however wish to provide three points of
context.
The first point is that I identify now that I have found the last period of work difficult.
Working conditions during the pandemic have been isolating. I have worked, generally
9- 10 hours per day, supporting Transurban in the CCT and ED without significant
coworker support for close to 2 years. I recognize now that these difficult working
conditions contributed to both my behavior towards Tony Rayment and my recent
illness.
[2022] FWC 1240
30
The second point is that I had genuine, well-founded concerns about Tony Rayment’s
actions. These concerns included that, particularly in circumstances where many of us
were stretched and working excess hours, he was not working his required hours and
was not being honest about that fact. I felt resentful about this, and angry when my
attempts to raise System-check falsification with management appeared to be ignored.
I am passionate about Transurban and was distressed at what I identified to be very
poor behavior by Tony at the expense of Transurban and his colleagues. Again however,
I accept that the way I then escalated the issue was inappropriate.
The third point is that this behavior was, in terms of my working life, unprecedented. I
have never previously behaved as I did recently. I have never previously been the subject
of a complaint or allegations of bullying. I am committed to never behaving like this
again.
I understand at this morning’s meeting I may be asked for a further response in respect
of the allegations. I will answer any questions asked of me frankly and honestly. I also
wanted to record, before the meeting, that I accept and acknowledge that I behaved
contrary to the Transurban Code of Conduct, and that my language and expression was
inappropriate and offensive.
I am also aware that at some stage Transurban will assess the appropriate sanction
against me. I ask that you not terminate my employment. I love my work, and am deeply
committed to Transurban and my colleagues. I believe that I am generally well
respected and engage well with others.
I accept that a formal warning will be appropriate, and also advise that I am willing to
undertake any additional training that you think may be useful. As I indicated above,
there will never be a repeat performance of this kind of behavior. I look forward to
seeing you later today.
Yours Sincerely,
George Georgiou”
[125] The Respondent made the decision to dismiss the Applicant and did so on 8 December
2021. The Respondent’s letter to the Applicant dated 8 December 2021 identified the reasons
for the dismissal as being breaches of the Transurban Code of Conduct, Equity in the Workplace
Policy, and Acceptable Use of Technology Policy.
[126] By way of summary, the Applicant submitted that the dismissal was unfair for the
following reasons:
The Applicant’s actions involved reporting a colleague for fraud by way of email sent
to the colleague and copying his manager. The Applicant submitted that he was
suspended the next day after a biased investigation.
[2022] FWC 1240
31
During the investigation into his concerns, the Applicant supplied a Webex
conversation from 18 September 2020 when the Applicant reported a colleague to his
line manager for falsifying system checks. The response was “leave it with me” and
the falsifications continued. The Applicant submitted that, if management had acted
to stop the falsifications, he would not have had any reason to make any further fraud
allegations and would most likely have remained in employment.
The person heading up the investigation should have disqualified himself from the
investigation as he had a conflict of interest because he did not stop the falsifications
when the Applicant raised them over a year earlier.
The Respondent’s ‘Code of Conduct’ required him to “report any suspicions of fraud,
bribery or unethical behaviour”. Further, the Respondent’s ‘Whistleblower Policy’
characterised the Applicant’s allegations as reportable conduct.
The Respondent’s ‘Equity in the Workplace’ policy states that an employee who
raises a complaint will not be subject to any form of victimisation and, by dismissing
the Applicant, the Respondent breached its own policy.
The person against whom the Applicant made the complaint lodged a vexatious
complaint of bullying and harassment against the Applicant. The Applicant submitted
that a “person who engages in fraudulent behaviour in the workplace…forfeits their
right to respect in the workplace”.
The alleged breaches that led to the Applicant’s dismissal included the accessing and
recording of the Respondent’s surveillance system. The Applicant submits the
accessing and recording of the Respondent’s surveillance system was purely for the
forwarding of information to Transurban management, not for personal reasons and
formed a legitimate business purpose.
Engineers are notorious for using colourful or crude language when communicating
with each other and the Applicant is no different.
[127] By way of summary, the Respondent submitted that the application will not succeed
based on the merits because there was a valid reason for the dismissal, a procedurally fair
process was followed and the Applicant was afforded a fair go all round. In particular, the
Respondent submitted:
there was a valid reason for the dismissal (s.387(a) of the FW Act) as the Applicant
was dismissed for breaching the Respondent’s policies;
the Applicant was notified of that reason (s.387(b) of the FW Act) during the in-
person meeting held on 8 December 2021 and in the dismissal letter of the same date;
the Applicant was given the opportunity to respond (s.387(c) of the FW Act) at all
material points and at the disciplinary meeting on 7 December 2021; and
[2022] FWC 1240
32
the Applicant was afforded the opportunity to have a support person present at all
relevant discussions relating to his termination (s.387(d) of the FW Act), an
opportunity of which he availed himself.
[128] During the Hearing, the Respondent further submitted that the merits of the matter
weigh against an extension of time. The Respondent submitted that it is not the purpose of the
current proceedings for the Commission to undertake a detailed assessment of the merits and
that the Commission is not usually called upon during an extension of time hearing to resolve
contested matters of fact. The Respondent also submitted that the matter is one in which it is
plain from the documents without a need for any resolution of contested facts that the prospects
of the application are low. The Respondent submitted that this is a rare case in which the
“mischief” underpinning a dismissal on the grounds of misconduct has been admitted by the
Applicant.
[129] During the Hearing, the Applicant submitted that it is sufficient for an applicant to
establish that the substantive application was not without merit. In this regard, the Applicant
referred to Cosgrove v Clarity Interiors27 in which a Full Bench of the Commission referred to
Kornicki v Telstra-Network Technology Group28 as follows:
“[33] In the matter of Kornicki v Telstra-Network Technology Group the Commission
considered the principles applicable to the extension of time discretion under the former
s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission
said:
“The merits of the substantive application. If the application has no merit then it
would not be unfair to refuse to extend the time period for lodgment. 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.””
[130] During the Hearing, the Applicant submitted:
the case raised by the Applicant is that the dismissal was harsh or unjust in the
circumstances, notwithstanding a breach of the work policies;
this requires a careful consideration of whether the reason was valid and that will
require a close look at the behaviour complained of, the circumstances related to that
behaviour and the wording of the policies upon which each party relies on, and proper
and full consideration of those matters is beyond the scope of the Hearing;
27 [2020] FWCFB 5464, [33]
28 Print P3168, 22 July 1997 per Ross VP (as he then was), Watson SDP and Gay C.
[2022] FWC 1240
33
nevertheless, in so far as the policies are concerned, the Code of Conduct itself states
that a breach may result in termination or some other form of disciplinary action. The
Applicant submitted the Code of Conduct clearly contemplates that breaches occur
on a spectrum of severity and it is thus open to the Applicant to make the argument
and to explore that his termination was harsh or unjust in the circumstances and
warranted some form of disciplinary action other than termination;
the Acceptable Use of Technology Policy provides no guidance on what a sanction
should be in the event of a breach other than to state that a failure to comply will
result in disciplinary action. The Applicant submitted this could range from a warning
to further training and at the most serious end dismissal; and
the Equity Policy does not state what disciplinary action should be taken in the event
of a breach but states it should be read in conjunction with the Code of Conduct. The
Applicant submitted that this suggests breaches of this policy may result in a range
of disciplinary action.
[131] In terms of the policies on which the Applicant relies, the Applicant submitted that the
Whistleblower Policy encourages employees to notify management of reportable conduct
including dishonest activities such as fraud and that this policy provides protection for persons
making disclosures.
[132] The Applicant submitted that his case does have merit given the policies outlined and
the questions to be answered at a full hearing, should the extension be granted.
[133] While the Applicant appears to have conceded that his conduct was inappropriate, it is
apparent that there are other disputed facts which could only be resolved by evidence at a
hearing. In these circumstances, I have considered the merits of the application as a neutral
factor in my determination of whether the discretion to grant a further period to make the
application should be exercised.
Section 394(3)(f) – fairness between the Applicant and other persons in a similar position
[134] In relation to the consideration of fairness between the Applicant and other persons
concerned, the Applicant submitted that his situation is “less fair” because:
the colleague he reported for fraud:
o was not suspended, investigated, asked to respond to the Applicant’s allegations,
disciplined or dismissed;
o was allowed to make a vexatious complaint of bullying and harassment against
the Applicant; and
o was allowed to supply written evidence of previous “bullying” communications
which were taken out of context;
[2022] FWC 1240
34
the Applicant refuted and clarified the context during the internal investigation but
the complaint was still used to dismiss him; and
the scenario suggests discrimination against the Applicant and favouritism toward the
offending colleague.
[135] During the Hearing, the Applicant submitted that on balance the extension ought to be
granted given the reasons offered by the Applicant, the short delay in filing, the conceded
absence of prejudice to the Respondent and the unusual circumstances that the Applicant found
himself in, keeping in mind the withdrawal of legal representation on the last day prior to the
Christmas closure leaving the Applicant with little time to prepare the application himself,
combined with circumstances in which the Applicant has a diagnosed medical condition that
could impact his comprehension.
[136] The Respondent submitted that the Applicant has failed to explain his delay in filing
and that this will usually tell against the grant of an extension of time. The Respondent
submitted, with reference to Dharan Prasad v Cordina Chicken Farms Pty Ltd,29 that it is
important that the principles governing a grant of an extension of time are applied consistently.
The Respondent submitted that, as a matter of fairness between the Applicant and other people
who file late and who are usually held to account for their failure to explain any part of their
delay, the grant should be refused.
[137] During the Hearing, the Applicant submitted that he was suffering a medical condition
and referred to Lock v General Assembly Australia T/A General Assembly30 (Lock) in which
DP Gostencnik said, in relation to the consideration of fairness between the Applicant and other
persons in a like position:
“[27] For the reasons earlier given I do not regard the Applicant to have been the author
of her demise. This consideration is ultimately concerned with ensuring that consistent
application of principle is achieved in determining whether an extended period of time
within which to lodge an application should be allowed. But ultimately each case is to
be assessed having regard to the circumstances particular to it. That said, where a
medical condition is established by evidence as having, or likely to have had, an impact
on the capacity of an applicant to lodge an application within time, this has been accepted
by the Commission as providing a satisfactory explanation for the delay in other cases.
The absence of medical evidence indicating the condition contributed to delay and
assertions as to the effect of the medical condition, provided as an explanation for the
delay, has resulted in that explanation not being acceptable. Given the medical evidence,
a decision in this case not to grant an extension of time may well result in unfairness as
between the Applicant and other persons in a like position. In these circumstances, this
consideration weighs in favour of the Applicant.”
29 [2019] FWC 4867, [26].
30 [2015] FWC 6036, [27].
[2022] FWC 1240
35
[138] As a Full Bench has noted, “this consideration is concerned with the importance of the
application of consistent principles in cases of this kind, thus ensuring fairness as between the
[applicant] and other persons in a similar position. This consideration may relate to matters
currently before the Commission or others previously decided by the Commission.”31 In
particular, the history of this provision indicates that it refers to “other employees of the
employer agitating the same or similar substantive issues”.32
[139] The evidence before me is distinguishable from the evidence in Lock. In that matter, the
applicant’s treating physician gave evidence in the proceedings beyond evidence of the nature
that has been provided by the Applicant. In particular, the treating physician’s evidence was
that, in his medical opinion, he had no doubt that the applicant’s anxiety and depression
impacted her ability to make the application that she made within the time prescribed.33 As I
have found earlier, no such evidence has been provided by the Applicant in this matter. The
Applicant has not taken me to any other employees in a similar position and I consider this a
neutral factor. Notwithstanding this, I am satisfied that a refusal to grant a further period in the
circumstances of this case will not be inconsistent with other cases where employees have been
refused a further period when the reasons for the delay have been similar or the same as those
provided in the present case and consistent with Full Bench authority in Nulty v Blue Star
Group.34
Is the Commission satisfied that there are exceptional circumstances, taking into
account the matters above?
[140] I must now consider whether I am satisfied that there are exceptional circumstances,
taking into account my findings and weighing each of the matters I am required to consider.
[141] Exceptional circumstances are circumstances that are out of the ordinary course,
unusual, special or uncommon but the circumstances themselves do not need to be unique nor
unprecedented, nor even very rare.35 Exceptional circumstances may 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 can be
considered exceptional.36
[142] I am not satisfied that the above matters considered individually point towards there
being any exceptional circumstances. Further, I am not satisfied that there are exceptional
circumstances after considering the above matters collectively.
[143] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that
there are exceptional circumstances.
31 Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963, [41].
32 Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19]
33 [2015] FWC 6036, [19].
34 [2011] FWAFB 975.
35 Ibid, [13].
36 Ibid.
[2022] FWC 1240
36
Conclusion
[144] Not being satisfied that there are exceptional circumstances, there is no basis for the
Commission to allow an extension of time. The Applicant’s application for an unfair dismissal
remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Ms E Dalrymple on behalf of the Applicant.
Mr N Burmeister on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video Using Microsoft Teams).
March 11.
Printed by authority of the Commonwealth Government Printer
PR741812
E FAIR F THE FAIR WORK COMME SSION THE SEAL
