1
Fair Work Act 2009
s.394—Unfair dismissal
Brian John Verity
v
Ballarat Health Services, Grampians Health
(U2023/9685)
DEPUTY PRESIDENT MASSON MELBOURNE, 1 NOVEMBER 2023
Application for an unfair dismissal remedy – application made outside of 21-day time limit -
no exceptional circumstances present – extension of time not granted – unfair dismissal
application dismissed.
Introduction
[1] This decision concerns an application made by Mr Brian John Verity (the Applicant)
for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The
Applicant who was employed by Grampians Health formerly Ballarat Health Services (the
Respondent) alleges he was dismissed on 25 August 2023. The unfair dismissal application was
lodged by the Applicant on 5 October 2023.
[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must
be made ‘within 21 days after the dismissal took effect’, or within such further period as the
Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the
dismissal took effect on 25 August 2023 the period of 21 days ended at midnight on 15
September 2023. The application was therefore filed 20 days outside the 21-day period. The
Applicant asks the Commission to grant a further period for the application to be made under
s.394(3) of the Act.
[3] The application for an extension of time to file the unfair dismissal application was set
down for determinative conference/hearing on 31 October 2023 in advance of which both
parties filed material in accordance with directions issued.
Background and evidence
[4] The Applicant commenced employment with the Respondent as a Security Officer on
21 September 2015. He states that during his almost 9 years of employment with the
Respondent he was not subject to any disciplinary action prior to the events leading to the
termination of his employment.
[2023] FWC 2866
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2866
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[5] The Applicant states that at approximately 5.45pm on 7 August 2023 he was assaulted
while performing his duties in the ‘resus 1’ area of the Emergency Department at the Grampians
Health Ballarat hospital. He states that because of the incident he suffered head injuries
resulting in bruising and headaches, a bite to his left wrist, broken ribs, shock and stress. The
Applicant was subsequently notified by way of a letter on 9 August 20231 (Allegations Letter)
that concerns regarding his conduct during and immediately following the incident on 7 August
2023 had arisen and that given the nature of those concerns he was to be suspended on pay
pending a formal disciplinary investigation.
[6] The Allegations Letter alleged that he had engaged in a physical altercation in the
workplace, that the conduct was inappropriate, that it was in breach of the Respondent’s
Working Together Policy and constituted a form of serious misconduct. The Allegations Letter
then went on to detail the alleged conduct of the Applicant in responding to the aggression
displayed by a patient with a history of Alzheimer’s and dementia who required physical
restraint. It was alleged that while the Applicant was attempting to restrain the patient, the
patient managed to get an arm free and struck the Applicant in the face three times in response
to which the Applicant was said to have then punched the patient in the face. The patient
suffered a cut to his bottom lip while the Applicant suffered a skin tear to his right hand/knuckle
as well as a skin tear/scratch to his left arm arising from physically restraining the patient. The
Allegations Letter went on to say that following the incident, those involved and who had
witnessed the incident gathered at the desk of ‘resus 1’ to discuss the incident. During this
discussion it was alleged the Applicant said words to the effect of “I got one back on him” and
“I’m glad I got one back on him”.
[7] On 11 August 2023, the Applicant attended a formal interview and in doing so opted to
not be accompanied by a support person or representative. On completion of the formal
investigation the Applicant received a letter from the Respondent dated 17 August 20232 which
set out the findings and preliminary outcome of the investigation (Findings and Preliminary
Outcome Letter). The Applicant was advised in the letter that the Respondent had concluded
the allegations were substantiated and that his conduct constituted misconduct warranting a
disciplinary outcome. The Respondent also extended a further and final opportunity for the
Applicant to present any additional information verbally or in writing for the Respondent to
consider as to why termination of the Applicant’s employment would not be a reasonable course
of action. A written response if preferred by the Applicant was required to be provided by no
later than 5.00pm on 21 August 2023.
[8] On 19 August 2023, the Applicant responded in writing3 (19 August Response) to the
Respondent. In the 19 August Response the Applicant stated that he was the victim of a
sustained and unprovoked assault, that the patient had struck him three times and had also
attempted to kick and bite him. The Applicant further stated in his response that his action of
punching the patient was in self-defence and that he used reasonable force to stop the patient
assaulting him. The Applicant also raised several other mitigating factors in his response
including that;
• the patient who assaulted him was younger and physically stronger than he was;
• the hospital provided body worn cameras were not fit for purpose;
[2023] FWC 2866
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• the hospital had failed to provide ongoing training for staff in how to respond to
violence and aggression;
• there were insufficient numbers of security staff available and/or other staff that
were adequately trained to assist in such incidents;
• when he made the alleged inappropriate comments immediately following the
incident, he was in shock and suffering from the effects of the assault; and
• during his nine years of employment with the Respondent, he had never been
subject to any disciplinary action and that he had struggled with his responses to
questioning during the 11 August 2023 meeting.
[9] On 25 August 2023, the Respondent sent a letter4 (Letter of Termination) to the
Applicant advising of the disciplinary investigation outcome and advised that after considering
the Applicant’s responses to the allegations it had concluded that on the balance of probabilities
the allegations had been substantiated. Specifically, it was found that the Applicant had engaged
in a physical altercation by punching a patient in the face and that placing the Applicant back
in the workplace would present a serious and imminent risk to the safety of the Applicant, other
employees and patients. The Applicant was further advised that the Respondent had decided to
terminate his employment with immediate effect but in consideration of his length of service,
he would receive five weeks’ salary in lieu of notice.
[10] On 11 September 2023, the Applicant underwent a chest x-ray5 which indicated injury
to his right 5th and 6th ribs laterally possibly due to a fracture. The report suggested a CT scan
be undertaken to confirm. No other issues were identified in the x-ray. The Applicant conceded
during cross-examination that the x-ray did not confirm rib fractures and suggested a CT scan
be obtained which he advised he did not subsequently obtain. The Applicant also agreed that
the pain of the suggested rib fractures receded over time such that he was not prevented from
engaging in the disciplinary process or preparing with some assistance his 19 August Response.
[11] The Applicant also obtained a medical report6 from his GP Dr Zia Ahmed dated 18
October 2023 which relevantly states as follows;
“…………….
He has been intermittently unwell since major surgery post various complications since
Nov 2019. Earlier this year he had 3 months off work to try and regain his health.
Following his termination from BHS (25/8/2023) he tried to cope with his physical and
mental injuries. For his ongoing rib cage pain, Chest Xray revealed two broken ribs,
right 5 & 6th. This rib fractures has been sustained post being assaulted on 7/8/23 which
was contributed to his hospitalisation.
Brian was shocked and devastated by his termination 2 and half weeks after being
assaulted. His mental state was fragile and he has felt humiliated and vulnerable to
finishing his career like this. He stated that no one from BHS offered him alternative
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strategies he could have used in that situation and no one from BHS also contacted him
following that incident.
Mr Verity is reluctant to seek counselling and psychological help as he thought it would
be not helpful enough. Immediate post termination, he could find any alternated options
to cope with this situation.
………..”
[12] The Applicant was questioned about the medical report prepared by Dr Ahmed. He
accepted that the report was prepared almost eight weeks after his dismissal on 25 August 2023.
He also accepted that much of the information contained in Dr Ahmed’s report simply re-stated
what the Applicant had reported to Dr Ahmed.
[13] During cross examination, the Applicant was also questioned about his admission to
hospital with pneumonia that he referred to in his submissions. He stated that the hospital
admission occurred approximately four weeks after the incident of 7 August 2023 and that he
was admitted for three nights. When pressed on the dates of admission he was unable to confirm
those dates. He did however advise that prior to and following his admission he was at home
and living independently with the support of his wife. He also confirmed that he has access to
a computer at home and that he was unaware of the 21-day filing requirement until sometime
after the 21-day period had passed.
Should an extension of time be granted?
[14] The Act allows the Commission to extend the period within which an unfair dismissal
application must be made only if it is satisfied that there are ‘exceptional circumstances.’
Briefly, 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.7 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.8
[15] The requirement that there be exceptional circumstances before time can be extended
under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3)
to extend the 14-day period within which an enterprise agreement must be lodged, which is
exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[16] Section 394(3) requires that, in considering whether to grant an extension of time, the
Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
[2023] FWC 2866
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(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[17] The requirement that these matters be taken into account means that each matter must
be considered and given appropriate weight in assessing whether there are exceptional
circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
[18] As earlier stated, for the application to have been made within 21 days after the dismissal
took effect, it needed to have been made by midnight on 15 September 2023. The delay is the
period commencing immediately after that time until 5 October 2023, although circumstances
arising prior to that day may be relevant to the reason for the delay.9
[19] 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.10 An applicant does not need to provide a reason for the entire period of the
delay although 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. Depending on all the circumstances, an
extension of time may still be granted where the applicant has not provided any reason for any
part of the delay11.
[20] The Applicant submits that following his dismissal he was in shock and suffering from
poor mental health. He further submits that following his dismissal he was feeling depressed,
suffering from headaches and chest pains which were eventually diagnosed as two broken ribs,
was also feeling generally unwell which eventually developed into pneumonia which required
hospital admission. He states that his poor mental and physical health in the wake of his
dismissal was such that he was not in a fit state to seek assistance to submit an unfair dismissal
application within the 21-day time frame.
[21] The reason for the delay in filing the Application is said by the Applicant to be due to
his general physical and mental health in the wake of his dismissal. The probative medical
evidence available is limited to an x-ray dated 11 September 2023 suggesting rib fractures
sustained in the incident of 7 August 2023 and a medical report provided by the Applicant’s GP
dated 18 October 2023. The Applicant also reports having been admitted to hospital for three
days with pneumonia approximately four weeks after the 7 August 2023 incident although he
could not identify the actual dates of hospital admission. If the Applicant’s estimate of the
hospital admission’s timing of being approximately four weeks after the 7 August 2023 incident
is correct, that would place the three-day hospital admission to a period on or about 4-6
September 2023.
[22] Turning to the medical evidence before me. The evidence regarding the rib fractures
claimed to have been sustained by the Applicant is limited to the x-ray which suggested a CT
[2023] FWC 2866
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scan be undertaken to confirm the fractures. The Applicant agreed that the fractures were not
subsequently confirmed by CT scan. However, even accepting the Applicant’s evidence at its
highest that he sustained two rib fractures during the 7 August 2023 incident, he agreed that the
pain receded over time such that he was able to engage in the disciplinary process undertaken
by the Respondent as evidenced by his capacity to prepare with assistance his 19 August
Response. In these circumstances I am not persuaded that the rib injuries sustained by the
Applicant were such as to prevent his filing his application at an earlier time than he did.
[23] The Applicant also contends that the state of his mental health in the wake of his
dismissal also contributed to the late filing of the Application. Beyond that submission there is
limited evidence to support it. Dr Ahmed’s medical report was prepared some two months after
the Applicant’s dismissal, is not probative as to the Applicant’s state of mental health in the
period immediately following his dismissal and largely reports the Applicant’s stated feelings
in the wake of his dismissal, a point conceded by the Applicant in cross-examination. Moreover,
Dr Ahmed’s report does not indicate that the Applicant was so affected by poor mental health
that he was unable to file an unfair dismissal application at an earlier time than he did. I do
however accept that the Applicant may have been shocked and distressed at his dismissal, but
such a reaction is neither unusual nor out of the ordinary.
[24] Turning finally to the Applicant’s claimed admission to hospital for three days with
pneumonia. As stated above, the Applicant could not identify the specific dates of admission
and release from hospital, although it appears based on the Applicant’s estimate of the timing
of his admission that it occurred on or about the 4-6 September 2023. If that is the case, I accept
that the period of his admission would explain why he was unable to file his application in that
three-day period. It does not however adequately explain why he was unable to file his
application before or after his hospital admission in circumstances where he agreed that prior
to and following his admission he was living independently at home with the support of his
wife. If it is accepted that the Applicant was released from hospital on or about the 6 September
2023 there is no evidence before me to indicate that that the Applicant was not in a physical
state capable of filing the Application on or by 15 September 2023 or at an earlier time than 5
October 2023 when he ultimately did file the application.
[25] Having regard to the above, I accept that the Applicant is likely to have suffered some
physical discomfort due to his rib injuries in the wake of the 7 August 2023 events. That
discomfort on the Applicant’s own admission receded and did not prevent him engaging in the
disciplinary process. I also accept that the Applicant was likely to have suffered some shock
and distress at his dismissal, but I am unable to conclude in the absence of more compelling
evidence that his mental state was such that he was unable to file his application before the 21-
day time period had passed or an earlier time than he did file the application. Finally, the
Applicant’s hospital admission for pneumonia may explain a brief period of incapacity on or
about 4-6 September 2023 but does not explain the entire period of the delay or even a
significant portion of it.
[26] I am not satisfied that the physical and mental health issues raised by the Applicant
when considered either individually or collectively provide an adequate explanation for the
delay in the filing of the application for an unfair dismissal remedy. This weighs against a
finding of exceptional circumstances.
[2023] FWC 2866
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Whether the person first became aware of the dismissal after it had taken effect
[27] It was not in dispute, and I find, that the Applicant was notified of his dismissal on the
same day that it took effect on 25 August 2023 and therefore had the benefit of the full period
of 21 days within which to lodge his unfair dismissal application. This weighs against a finding
of exceptional circumstances.
Action taken to dispute the dismissal
[28] It is not apparent that the Applicant took any action to contest his dismissal after it took
effect on 25 August 2023, other than lodging his unfair dismissal application. This circumstance
does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[29] The application was filed 20 days outside of the 21-day period. While that period of
delay is not insignificant, the Respondent has not advanced any submissions or material that
persuade me that it would suffer any significant prejudice. In the circumstances I consider this
factor to be a neutral consideration.
Merits of the application
[30] The Act requires me to take into account the merits of the application in considering
whether to extend time. The Applicant submits that while he was accused of assaulting a patient,
he was in fact a victim of an unlawful assault in response to which he lawfully defended himself
which he submits he was entitled to do under s 462A of the Crimes Act 1958. He further submits
that the investigation was not carried out by a suitably qualified person, that the body worn
cameras in use were inadequate, there was a lack of training for staff in handling aggressive or
violent incidents and the Respondent had failed to provide appropriate training to new staff to
enable them to provide support to him.
[31] The Respondent submits in reply that the Applicant’s admitted conduct of punching a
patient with Alzheimer’s in the face was deliberate and wilful, and regardless of the patient’s
conduct, was not proportional in circumstances where the Applicant was a trained security
guard who holds a security license. The conduct was said by the Respondent to be in breach of
its ‘Working Together Policy’ and ‘Code of Conduct for Victorian Public Sector Employees’
as well as being inconsistent with the Occupational Health and Safety Act 2004 (Vic). Further,
it was unacceptable for the Applicant to have made comments immediately following the
incident that sought to justify or demonstrate a degree of satisfaction with having punched the
patient. As regards the mitigating factors raised by the Applicant, the Respondent submits that
the Applicant’s length of service should have enabled the Applicant to respond in a different
and less aggressive manner. The Respondent also asserts that the disciplinary process was
conducted in a procedurally fair manner.
[32] It is evident to me that the merits of the Application are likely to turn on contested points
of fact which would need to be tested if an extension of time were granted and the matter were
to proceed. The Applicant has an arguable case that his conduct was proportionate to the assault
he suffered and that other mitigating factors may tell in favour of harshness of the dismissal.
[2023] FWC 2866
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For its part, the Respondent raises a prima facie defence that the Applicant’s conduct could not
be excused by the behaviour of the patient and was not proportionate in circumstances where
the patient was vulnerable and that the Applicant was trained, qualified, and had considerable
experience as a security guard. Based on the limited material available at this stage of
proceedings I do not consider the merits of the present case tell for or against an extension of
time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[33] This consideration may relate to matters currently before the Commission or to matters
previously decided by the Commission. It may also relate to the position of various employees
of an employer responding to an unfair dismissal application. However, cases of this kind will
generally turn on their own facts.
[34] Neither party brought to my attention any relevant matter concerning this consideration
and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is
nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
[35] Having regard to the matters I am required to take into account under s.394(3), and all
of the matters raised by the Applicant and outlined above, I am not satisfied that there are
exceptional circumstances in this case, either when the various circumstances are considered
individually or together.
[36] Because I am not satisfied that there are exceptional circumstances, there is no basis for
me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the
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Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order
to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
S Broadway for the Applicant.
M Morris for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
October 31.
Printed by authority of the Commonwealth Government Printer
PR767807
1 Exhibit A2, Letter to Applicant dated 9 August 2023, titled ‘Allegations of Serious Misconduct – Formal Disciplinary
Investigation’
2 Exhibit A4, Letter to Applicant dated 17 August 2023, titled ‘Disciplinary Investigation – (Findings and Preliminary
Outcome)’
3 Exhibit A5, Applicant response to Findings and Preliminary Outcome Letter
4 Exhibit A6, Letter to Applicant dated 25 August 2023, titled ‘Disciplinary Investigation Outcome Termination of
Employment – Serious Misconduct’
5 Exhibit A7, X-ray dated 11 September 2023
6 Exhibit A8, Medical Report dated 18 October 2023
7 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
8 Ibid.
9 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
11 Ibid at [40].
THE FAIR WORK COMMISSION AUSTRALIA O SEAL THE
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb287.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
