1
Fair Work Act 2009
s.365—General protections
Adam Constable
v
Mercy Community Services SEQ Limited
(C2023/2307)
COMMISSIONER HUNT BRISBANE, 26 JULY 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
application made out of time – employee suffering PTSD – ignorance of general protections
jurisdiction.
[1] On 20 April 2023, Mr Adam Constable made an application pursuant to s.365 of the
Fair Work Act 2009 (the Act) alleging that he was dismissed by Mercy Community Services
SEQ Limited (the Respondent) in contravention of the general protection provisions of the Act.
[2] Mr Constable was dismissed on 29 March 2023.
[3] Section 366 of the Act states:
‘366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[2023] FWC 1828
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1828
2
[4] For Mr Constable to have made his application within the statutory time limit of 21 days
after the dismissal took effect, the application needed to have been filed by 19 April 2023. The
application has been made one day out of time.
[5] Mr Constable seeks an extension of time within which to make his application.
[6] Directions were issued, providing the parties with an opportunity to file witness
statements and submissions. A hearing by Microsoft Teams was convened on 25 July 2023. Mr
Constable appeared and gave evidence. Mr Carl Roberts, HR Operations Manager appeared for
the Respondent.
Evidence of Mr Constable
[7] Mr Constable commenced employment with the Respondent on 6 February 2023 as a
Support Worker in Gladstone. He stated that on his second day of employment, a young male
known to the Respondent attended Mr Constable’s work premises at approximately 9:30am.
His case worker, Casey, was not available. Mr Constable stated he would call her for him.
[8] At approximately 9:45am, the young man left. He returned at approximately 10:00am,
demanding to be driven to Brisbane to his father’s place. Casey was able to speak to him on the
phone and assured him arrangements would be made to provide him transport to Brisbane, but
it was still to be organised. He again left the premises.
[9] The young man returned at around 10:35am, at which point Mr Constable was the only
staff member present. The young man was enraged, threatening to destroy all property, steal
Mr Constable’s belongings and assault him. The young man made vile threats to Mr Constable.
[10] After the young man left, the staff member returned, and police attended. Mr Constable
declined to make a formal statement at the time. Mr Constable was encouraged by his colleague
to go home, however when he went to the carpark, the young man was awaiting him. Mr
Constable ran for his car, with the young man blocking him and half-tripping him.
[11] The young man made threats of assault, and Mr Constable was lucky to be able to reach
his car. The young man then repeatedly bashed his window. When Mr Constable was able to
safely reverse, the young man was blocking his exit. He ripped his own shirt off and threatened
to kill Mr Constable, while repeatedly hitting his bonnet and spitting on his car.
[12] The young man again approached the drivers side window, threatening to break the
window. Mr Constable reluctantly put the window down far enough to speak with the young
man, while on the phone to police at the time. Mr Constable was able to depart the car park in
his vehicle as the young man was momentarily distracted. The young man continued to spit at
his car and lash out, however Mr Constable made his exit. He saw two police cars and the young
man was arrested. Mr Constable made a statement to the police.
[13] Mr Constable made a workers’ compensation claim which he stated was accepted on 24
March 2023.
[2023] FWC 1828
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[14] On 29 March 2023, his employment was terminated by provision of the following letter:
“Dear Adam,
RE: Termination of Employment with Mercy Community
The purpose of this letter is to refer to the previous interactions with your Team Leader,
Regional Manager and co-workers and approach to work. Whereby, there is an
expectation of being on our best behaviour during the probation period. Despite your
engagement in this role being only one month, it has been found that throughout the
course of your employment:
• There has been a continued failure to complete compulsory induction training despite
being directed to;
• You have worked more hours than directed after being directed not to and refused to
release said workload to other employees;
• On 10th March 2023 you were uncontactable for follow-up as to why you were not
present at induction training and had missed an appointment at the office;
• There has been intimidating and verbally abusive language/messages via SMS and
email sent by you to your Team Leader and Regional Manager; and
• Repeated refusal to follow direction and failure to act in Good Faith towards your
employer.
As a result, you have not acted in line with Mercy Community Code of Conduct and
Values and have ultimately undermined the employment relationship. Accordingly,
continuing your employment is untenable and a decision has been made to terminate
your employment, effective immediately as at the 29th March 2023.
Based on your short length of service, your notice period is one week, which will be
paid in lieu. You will be paid this and all entitlements owing to you up to and including
your last day of employment. The payment shall be made via electronic funds transfer
to your previously nominated bank account within the next pay run.
You will be aware that in your contract of employment you are still to adhere to the
confidentiality clause, which will continue after cessation of employment. A courier will
be sent to your place of residence to collect your laptop, keys, ID and any other Mercy
property in your possession. Should you require a separation certificate and/or statement
of service, please contact Human Resources and these will be completed for you.”
[15] He stated that in effecting the termination, the Respondent’s HR Business Partner rang
him to congratulate him on his workers’ compensation being accepted, but then informed him
his employment was terminated.
[2023] FWC 1828
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[16] Mr Constable attended upon Shine Lawyers on 31 March 2023 to discuss bringing a
common law workers’ compensation claim. He stated that he did not seek advice about bringing
an unfair dismissal claim or a general protections claim. In oral evidence he stated that he raised
with them how he might bring a discrimination claim, but they said that was another division
within the firm and there would be a fee involved. Accordingly, Mr Constable did not pursue
any claim.
[17] Mr Constable visited his General Practitioner (GP) on 3 April 2023, and his psychologist
on 4 April 2023. Between 6 and 17 April 2023, Mr Constable was 3.5hrs away from Gladstone,
visiting his sister who was sadly, terminally ill and passed away on 14 May 2023.
[18] On his return to Gladstone, he visited his GP on 18 April 2023, and again saw his
psychologist on 20 April 2023.
[19] In oral evidence, Mr Constable stated that he did not know of the general protections
jurisdiction until he discussed his issues with a friend on 20 April 2023. She told him about the
jurisdiction and cautioned him of the 21-day time limit, noting that the period of time had just
passed. Mr Constable stated that on that same day, he contacted the Commission and made his
application.
[20] Mr Constable submitted that he remained traumatised by the incident in February 2023
with the young man and he has PTSD. He considers that he was held hostage in the event.
Respondent’s submissions
[21] The Respondent noted that Mr Constable was well enough on 31 March 2023 to
physically visit Shine Lawyers to discuss his workers compensation claim. In oral submissions
it was put that it would be difficult to reconcile him not raising his termination with his workers’
compensation lawyers and seeking advice on this issue. The Respondent chose against
questioning Mr Constable on this issue after my caution that Mr Constable need not answer any
questions if he did not wish to waive his right to claim legal professional privilege.
[22] It was submitted that Mr Constable has not provided any medical evidence supporting
a position that while he was able to seek legal advice on another issue, he was unable to attend
to this application.
Applicable case law
[23] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group
Pty Ltd1 where the Full Bench said:
‘[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in s.394(3)
and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary
as “forming an exception or unusual instance; unusual; extraordinary.” We can
[2023] FWC 1828
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apprehend no reason for giving the word a meaning other than its ordinary
meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295 a case
involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR
372 at 379 Brennan and Dawson JJ considered a statutory provision which
entitled either a parole board or a court to specify a shorter non-parole period
than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence
on this point, albeit that they were dissenting) explained that the power under
consideration allowed departure from the norm only in the exceptional or special
case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English
adjective, and not as a term of art. It describes a circumstance which is
such as to form an exception, which is out of the ordinary course, or
unusual, or special, or uncommon. To be exceptional a circumstance need
not be unique, or unprecedented, or very rare; but it cannot be one that is
regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a
single exceptional matter, a combination of exceptional factors or a combination
of ordinary factors which, although individually of no particular significance,
when taken together are seen as exceptional. Thus, the sun and moon appear in
the sky everyday and there is nothing exceptional about seeing them both
simultaneously during day time. But an eclipse, whether lunar or solar, is
exceptional, even though it can be predicted, because it is outside the usual
course of events.
[2023] FWC 1828
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27. It is not correct to construe ‘exceptional circumstances’ as being only some
unexpected occurrence, although frequently it will be. Nor is it correct to
construe the plural ‘circumstances’ as if it were only a singular occurrence, even
though it can be a one off situation. The ordinary and natural meaning of
‘exceptional circumstances’ in s 106KA(2) includes a combination of factors
which, when viewed together, may reasonably be seen as producing a situation
which is out of the ordinary course, unusual, special or uncommon. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning
and requires consideration of all the circumstances. To be exceptional, circumstances
must be out of the ordinary course, or unusual, or special, or uncommon but need not be
unique, or unprecedented, or very rare. Circumstances will not be exceptional if they
are regularly, or routinely, or normally encountered. Exceptional circumstances can
include a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors which, although individually of no particular
significance, when taken together are seen as exceptional. It is not correct to construe
“exceptional circumstances” as being only some unexpected occurrence, although
frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were
only a singular occurrence, even though it can be a one off situation. The ordinary and
natural meaning of “exceptional circumstances” includes a combination of factors
which, when viewed together, may reasonably be seen as producing a situation which
is out of the ordinary course, unusual, special or uncommon.’ [Endnotes not reproduced]
[24] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not
necessary that the applicant for that extension of time be overtaken by a catastrophic event.
Reasons for delay in the category of extreme events are not necessary to meet the test. All of
the factors outlined in s.366(2) of the Act must be considered and weighed when deciding
whether or not exceptional circumstances, circumstances sufficient to support an exception,
exist.
[25] An applicant for an extension of time has an onus to adduce evidence in support of
matters which that applicant asserts constitute exceptional circumstances.2
[26] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application
seeking an extension of time to file an application for the Commission to deal with a dismissal
dispute.3 A decision whether to extend time under s.366(2) involves the exercise of a
discretion.4
[27] I now consider these matters in the context of the application.
The reason for delay – s.366(2)(a)
[28] The reason for the delay in lodging an application is a factor that must be considered.
The Act does not specify what reason or reasons for delay might favour granting an extension,
although decisions of the Commission have referred to an acceptable or reasonable
explanation.5 The absence of an explanation for any part of the delay will usually weigh against
[2023] FWC 1828
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an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay
will usually weigh in an applicant’s favour, though it is ultimately a question of degree and
insight.6
[29] A reasonable explanation for the delay is not needed for the whole of the period of delay,
or may in fact not be required at all, if the circumstances are otherwise exceptional.7 The period
of the delay requiring explanation is the period commencing immediately after the time for
lodging an application has expired, ending on the day on which an application is ultimately
lodged. That said, regard may be had to any circumstances from the date the dismissal took
effect when assessing whether an explanation for the delay is acceptable or credible.8
[30] In this matter, the delay is the period from when 20 April 2023 commenced through
until when the application was filed at 5:52pm on the same date.
[31] I accept that Mr Constable has suffered through a traumatic experience in relation to the
incident in early February 2023, so soon after he commenced employment. In his evidence
before the Commission, he also spoke to another event which caused him much distress.
[32] I also acknowledge that Mr Constable was heavily impacted by the foreseeable passing
of his sister on account of her terminal illness.
[33] However, in evidence given during the hearing, it is clear that Mr Constable was not
aware of the general protections jurisdiction until he was informed of the avenue by a friend on
20 April 2023. The reason for the delay in not bringing his application by no later than 19 April
2023 is one of ignorance.
[34] It is not the case that Mr Constable was aware of the application he could make but was
so crippled by his medical condition or concern for his sister that he was unable to make the
application within time. Factually, Mr Constable wasn’t aware he could bring the application
and that is then, accordingly, due to ignorance.
[35] I do not consider that Mr Constable’s ignorance of, or unawareness about the avenue of
the general protections jurisdiction is a factor that points to supporting a conclusion of
exceptional circumstances.
[36] The reasons for the delay provided are not, in my view, reasons that are supportive of
an extension of time being granted.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[37] 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.9
[38] Mr Constable gave evidence that he met with his workers’ compensation lawyers on 31
March 2023, days within his dismissal. He did not seek advice in relation to his termination of
employment.
[2023] FWC 1828
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[39] Mr Constable did not make any attempt to dispute his dismissal with the Respondent. I
do not consider that this is a factor that is supportive of an extension of time being granted.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
[40] The Respondent conceded that a delay of one day in bringing the application would not
cause prejudice to the Respondent. I agree.
[41] The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that
exceptional circumstances exist such that time should be extended. I do not consider that this
factor is supportive of a finding of exceptional circumstances.
The merits of the application – s.366(2)(d)
[42] It is well established that, “it will not be appropriate for the Tribunal to resolve contested
issues of fact going to the ultimate merits for the purposes of taking account of the matter in
s.366(2)(d).”10
[43] For the purpose of this application, I consider that the merits of the claim is a matter to
be treated neutrally.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[44] The criterion of ‘fairness as between the person and other persons in a similar position’,
was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,11 where
it was said:
“…cases of this kind will generally turn on their own facts. However, this consideration
is concerned with the importance of an application of consistent principles in cases of
this kind, thus ensuring fairness as between the Applicant and other persons in a similar
position, and that consideration may relate to matters currently before the Commission
or matters which had been previously decided by the Commission.
[45] I am not satisfied that the criterion of fairness between Mr Constable and other persons
in a similar position weighs strongly in favour of either party. As such, I consider it a neutral
consideration.
Conclusion
[46] Having taken into account each of the factors referred to in s.366(2)(a) to (e) of the Act,
I am not persuaded that there are exceptional circumstances warranting consideration of
whether I should exercise my discretion to allow a further period within which an application
may be lodged by Mr Constable.
[47] Accordingly, the application for an extension of time is refused and the substantive
application is dismissed.
[48] An order giving effect to this decision will be issued separately [PR764598].
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764598.pdf
[2023] FWC 1828
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COMMISSIONER
Appearances:
A. Constable on his own behalf.
C. Roberts for the Respondent.
Hearing details:
2023
Brisbane
Video
25 July
Printed by authority of the Commonwealth Government Printer
PR764557
1 [2011] FWAFB 975.
2 Smith v Canning Division of General Practice [2009] AIRC 959
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288at [21].
4 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
5 Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]-[45].
7 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
8 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287at [12]; Ozsoy v Monstamac Industries Pty
Ltd [2014] FWCFB 2149 at [31] –[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963;
Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
10 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36]
11 [2015] FWC 8885 at [29].
THE CORS THE CO & AUSTRALII W MMISSION E SEAL THE
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