Fair Work Act 2009
s.394—Unfair dismissal

Karina Zelesco
v
Australian Postal Corporation
(U2021/11105)

Application for an unfair dismissal remedy – application made outside 21-day timeframe – exceptional circumstances.

[1] Ms Karina Zelesco made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 2 December 2021. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). The respondent, Australian Postal Corporation (Australia Post), submits that the application was made outside the statutory timeframe and opposes the grant of an extension of time. It says that Ms Zelesco has not demonstrated exceptional circumstances in support of her application.

[2] For the reasons that follow:

(a) I find that Ms Zelesco’s application was not made within the timeframe prescribed by s 394(2) of the Act; and
(b) I am satisfied that there are exceptional circumstances. The timeframe for lodgement of the application is therefore extended to 2 December 2021.

Background

[3] Ms Zelesco commenced employment with Australia Post on a permanent basis on 28 November 2011. She worked as a Mail Officer at the Dandenong Letter Centre, a position which she remained in until her dismissal.

[4] On 15 February 2019, Ms Zelesco was involved in an incident at her workplace leading to her suspension on 18 February 2019. 1 Through the incident response procedures, Ms Zelesco was referred for a psychiatric assessment.2 In a report dated 6 June 2019, the psychiatrist recommended that Ms Zelesco remain on sick leave until she underwent a neuropsychological and cognitive assessment and a diagnosis could be confirmed.3

[5] By way of report dated 13 September 2019, a neuropsychologist raised the possibility that Ms Zelseco had a “Non-Verbal Learning Disability”. The neuropsychologist determined that Ms Zelesco was capable of returning to her role subject to “the one restriction of being able to focus on doing one job at a time.” 4 However, having regard to all of the circumstances Australia Post deemed Ms Zelesco as unfit for duty,5 and Ms Zelesco remained on leave, comprising mostly of sick leave without pay, between 6 July 2019 and her dismissal date.6

[6] During the period of leave, Australia Post maintained contact with Ms Zelesco through Mr Scott Allison, Manager of the Non Work Related Medical Support Services Unit, myHR. It appears that consideration was given to moving Ms Zelesco into another role. 7 Mr Allison also raised with Ms Zelesco that under the Australia Post Enterprise Agreement 20178 (Agreement) a person continuously absent for more than 78 weeks can be medically retired on incapacity grounds.

[7] On 19 March 2021, Mr Allison wrote to Ms Zelesco stating that it was Australia Post’s intention to medically retire her subject to any further information provided by Ms Zelesco. 9 On 28 April 2021, Ms Zelesco’s general practitioner issued a certificate stating Ms Zelesco was suffering from a medical condition but that she had recovered and was “fit for her normal work” from 3 May 2021.10 Australia Post suspended the medical retirement process on the basis of this advice and referred Ms Zelesco to the neuropsychologist for a further assessment.

[8] The neuropsychologist’s 15 June 2021 report advised that while Ms Zelesco did not have any particular learning disability, her cognitive functions were in the low to average, and borderline, range. The neuropsychologist determined that Ms Zelesco was fit to return to work with no restrictions. However, this advice did not take into account matters beyond the neuropsychologists area of expertise and was therefore considered inconclusive by Australia Post. 11 Ms Zelesco subsequently attended an assessment with a psychiatrist on 5 July 2021. The report, dated 3 August 2021, advised that Ms Zelesco was fit to return to work gradually, perhaps undertaking alternative duties, and advised against medical retirement.12

[9] Mr Allison wrote to Ms Zelesco on 12 August 2021 advising that, based on the medical reports, Australia Post would not proceed with medical retirement and would commence Ms Zelesco’s return to work. Ms Zelesco was to contact Mr Rod Hoober, Facility Manager at the Dandenong Letter Centre, and arrange to meet to discuss her return. 13

[10] In the weeks that followed, it is submitted by Australia Post that Ms Zelesco sent a large number of text messages and emails to various employees of Australia Post. The volume and content of these communications led to Australia Post arranging a further report from the same psychiatrist. The only additional information available to the psychiatrist was the text messages and emails. In a report dated 31 August 2021, the psychiatrist modified her diagnosis and advised that Ms Zelesco was unfit to return to work, that her mental illness was permanent in nature and that the process of medical retirement should proceed. The psychiatrist diagnosed Ms Zelesco with “a disorder in the paranoid spectrum” noting that “one might even consider that she had a low grade psychotic illness...” 14

[11] A letter dated 1 September 2021 was sent from Mr Sokratis Kokonis, Head of myHR, People and Culture, to Ms Zelesco as notification that she would be medically retired (Medical Retirement Letter). The content of the letter is considered later in this decision, though it is relevant to note that:

(a) the medical retirement was said to have effect from 15 September 2021; and
(b) Ms Zelesco could request an internal review of the decision to the Board of Reference (Board) within 14 days. 15

[12] Ms Zelesco lodged an internal appeal of the decision on 11 September 2021. The Board conducted a conference in respect of Ms Zelesco’s appeal on 16 November 2021. On 18 November 2021, the Board handed down its decision, finding that the decision to medically retire Ms Zelesco was not “harsh, unjust or unreasonable.” 16

[13] On 30 November 2021, Ms Zelesco emailed the Commission advising as follows:

“Appeal against Medical Retirement,

Will be sending cheque and application form by express post today…”

[14] Ms Zelesco’s Form F2 unfair dismissal application dated 22 November 2021 was received by the Commission on 2 December 2021. 17

When did the dismissal take effect?

[15] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after a dismissal took effect.” A dismissal only takes effect when it is communicated to the employee. 18 In Ayub v NSW Trains,19 the Full Bench held that a dismissal cannot take effect until an employee becomes aware, or at least has a reasonable opportunity to become aware, that he or she has been dismissed.

[16] Ms Zelesco submits that her dismissal did not take effect until the Board handed down its decision on 18 November 2021, such that she made her application for an unfair dismissal remedy within the timeframe prescribed by the Act. Australia Post contends that the date of dismissal was 15 September 2021 as stated in the Medical Retirement Letter and the application is therefore made out of time.

[17] The effect of internal review procedures on the question of when a dismissal took effect has been the subject of Full Bench consideration. In Qantas Airways Limited v Mr Jarrod McRae, 20 the Full Bench found that seeking internal review of the dismissal decision did not necessarily change the date the dismissal took effect. It is relevant to consider the communication to the employee as well as the relevant policy dealing with an internal appeal process. In McRae, it was held that the decision to terminate the applicant’s employment was clearly communicated and that:

•  there was nothing in the termination letter to suggest that seeking internal review “would suspend or affect” the decision; and

•  the relevant internal policy did not “state or imply” that by seeking internal review a decision to dismiss an employee is “suspended, or ceases to have effect.” 21

[18] These considerations were repeated with approval in Long v Keolis Downer (t/as Yarra Trams). 22 The Full Bench in Long accepted that although an internal review of the dismissal decision had been sought, the dismissal took effect on the date stated in the termination letter.

[19] Australia Post communicated its decision to “medically retire” Ms Zelesco in the Medical Retirement Letter. The subject matter of the letter is “Notification of retirement on the medical grounds of incapacity.” After noting Ms Zelesco’s continuous absence since 6 July 2019 and that the Agreement provides an entitlement to up to 78 weeks continuous absence, the Medical Retirement Letter stated:

“…I have now reviewed your whole situation including your period of continued absence; the additional timeframe granted to you in excess of 78 weeks, approximately 8 months; along with your further advice to Mr Allison of 26 March 2021; the further communications you sent to various parties within Australia Post; the subsequent further views from [the psychiatrist]; and after consideration of all such factors I now wish to advise that medical retirement on the grounds of incapacity will proceed.

Therefore, we will now proceed to medically retire you on the grounds of incapacity. This will be with effect from close of business 15 September 2021. The decision is made pursuant to clause 3 of the Australia Post Principal Determination.

You have a right to request a review of the decision to incapacity retire you on medical grounds by a Board of Reference Chairman, pursuant to clause 5 – Grievances of the Australia Post Principal Determination, if you consider the decision to be harsh, unreasonable, unjust or unfair. An application for review of the decision must be lodged… within 14 days of the date of this notification.” 23

(underlining added)

[20] The emphasised passage of the Medical Retirement Letter communicates that Australia Post made a “decision” to medically retire Ms Zelseco with effect from 15 September 2021. While the words “retire” and “retirement” do not ordinarily unambiguously convey dismissal, I accept that under the Agreement, Australia Post may unilaterally end an employee’s employment if the employee has exhausted all leave allowable with pay and has been continuously absent from work for over 78 weeks. 24 It is uncontentious that such action by Australia Post amounts to termination of employment.

[21] On the evidence before the Commission, Ms Zelesco had been made aware of the concept of a medical retirement under the Agreement at least before 1 July 2020. Following a telephone call on 1 July 2020, Mr Allison stated to Ms Zelesco in writing on 13 July 2020:

“Lastly you raised your concerns as to what happens should we not be able to identify another role for your pending placement. I know you were aware of the Australia Post Enterprise Agreement clause around medical retirement, i.e. that this is considered at the 78 week mark and for you this was early January 2021...” 25

[22] Ms Zelesco did not suggest she did not understand that medical retirement meant her employment was coming to an end, and I accept that she understood the concept insofar as it meant her employment would at some point end. Ms Zelesco submits that “the letter notifying me of my medical retirement was a bit unclear and very vague.” 26 Ms Zelesco says that she “was of the belief that due to putting in an appeal to the Board of Reference that an official Medical retirement would not take place until after the medical Board of Reference made a final decision.”27

[23] The Medical Retirement Letter communicates Australia Post’s decision, made pursuant to clause 3 of the Australia Post Principal Determination (Principal Determination), to medically retire Ms Zelesco with effect from 15 September 2021. Clause 3 of the Principal Determination provides that an employee may be “retired from the Corporation” if that “employee is found to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties applicable to the employee’s position.” 28 While the Medical Retirement Letter invites an internal review of the decision under clause 5 of the Principal Determination, there is nothing expressed in the letter to suggest that such a review would suspend or otherwise affect Australia Post’s decision to medically retire Ms Zelesco.

[24] Clause 5 of the Principal Determination sets out a procedure for resolving certain “complaints.” It provides that where the Board, on review, “is of the opinion that the matter should be reconsidered by Australia Post, it may recommend accordingly and advise of the action it considers appropriate based on the merits of the application.” The recommendation may be accepted or rejected by Australia Post, but any decision to reject a recommendation must not be made below General Manager or equivalent level. 29 There is, unfortunately, no information as to the potential outcomes of the internal review or the powers of the Board in the Medical Retirement Letter. There is also no information in the Medical Retirement Letter or the Principal Determination referring to avenues of review in the Commission or elsewhere.30 I accept, however, that the mere absence of this information does not change what is communicated by the Medical Retirement Letter.

[25] It follows that there is nothing in the Medical Retirement Letter that supports a finding that the internal review suspended or affected the decision to medically retire Ms Zelesco. Further, I am satisfied that the Principal Determination did not state or imply that by seeking an internal review, the decision to medically retire Ms Zelesco would be suspended or cease to have effect.

[26] I find that Ms Zelesco’s dismissal took effect on 15 September 2021, as specified in the Medical Retirement Letter. Ms Zelesco’s application for an unfair dismissal remedy was filed with the Commission on 2 December 2021. The application was therefore made 56 days after the 21-day timeframe prescribed by s 394(2) had lapsed. It follows that Ms Zelesco requires the Commission to allow further time for her application to be made.

Extension of time

[27] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd. 31 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.

[28] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(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.

[29] I consider each of these matters below.

Consideration

Reason for the delay: s 394(3)(a)

[30] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 32 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.33

[31] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being 7 October 2021 to 2 December 2021. 34 However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.35

[32] Ms Zelesco relies upon two matters to explain the reason for the delay in lodging her application for an unfair dismissal remedy:

(a) Ms Zelesco was confused by the content of the Medical Retirement Letter and was of the belief that lodging an internal review meant that she “would stay employed until I had been medically retired by the medical Board Chairman.” 36

(b) Ms Zelesco said that she was not “was not made aware” of her ability to lodge an unfair dismissal claim in the Commission by the union. 37 In support of this position, Ms Zelesco’s representative of a number of years, Communications Workers Union official Mr Martin O’Nea, assumed responsibility for the delay at the Hearing, citing “representative error.”

[33] Ms Zelesco gave evidence that she was “a bit confused” by the Medical Retirement Letter, which explained the process for lodging an internal appeal to the Board but did not state the effects of seeking internal review or her option to make an unfair dismissal application in the Commission. Following the conclusion of the internal review, Ms Zelesco asked Mr O’Nea whether she could lodge an application for an unfair dismissal remedy to which Mr O’Nea said, “no, you’ve been medically retired.” Ms Zelesco said that she informed Mr O’Nea that she would “try anyway,” believing that she had 21 days from the date of the Board’s report to do so. Ms Zelesco lodged the application with the Commission on 2 December 2021, being 14 days after the conclusion of the internal review on 18 November 2021.

[34] Mr O’Nea gave evidence at the Hearing in respect of the contention of representative error. Mr O’Nea said that it was incumbent upon him to provide Ms Zelesco with the correct information about her unfair dismissal rights and the 21-day period to lodge an application. However, Mr O’Nea “rightly or wrongly” held the belief that the 21-day period commenced from the date the Board determined the outcome of the internal review and that was “no fault of Ms Zelesco.” Rather, Mr O’Nea said, “if it’s a mistake it’s my mistake.” Mr O’Nea submitted that he held the erroneous view that the Board reviewing a medical retirement decision differed from an “unfair dismissal Board of Reference,” which he had attended on numerous occasions, and he understood the purpose of the internal review was to provide fresh medical evidence which contradicted the evidence before Australia Post. In light of his misapprehension, Mr O’Nea said that he felt no sense of urgency to advise Ms Zelesco of the 21-day timeframe to lodge an unfair dismissal application in the Commission.

[35] Having been provided with a copy of the Medical Retirement Letter, Mr O’Nea said that he had telephoned Ms Zelesco and left messages for her to return his call in or about mid to late September 2021. Although he could not recall Ms Zelesco returning his call, Mr O’Nea said that they had spoken by telephone in mid to late September 2021 about Mr O’Nea providing representation at the internal review hearing before the Board.

[36] Australia Post submits that Ms Zelesco has not provided a reasonable and credible explanation for the delay. It says that the Medical Retirement Letter advised Ms Zelesco in clear and unequivocal terms that her employment would be terminated with effect on 15 September 2021 and the internal review does not function as a stay on the termination decision. It submits that Ms Zelesco’s ignorance of the Commission’s unfair dismissal jurisdiction is not an exceptional circumstance and does not constitute a reasonable explanation for the delay. 38

[37] Further, Australia Post contends that the circumstances fall short of establishing representative error. It submits that there is no evidence before the Commission of any effort by Ms Zelesco to engage with Mr O’Nea regarding the making of an unfair dismissal application in the Commission or to inquire about the options open to her. In those circumstances, Australia Post contends that Ms Zelesco cannot be described as a “blameless” individual.

[38] For the reasons that follow, I find that Ms Zelesco has provided a credible reason for the whole of the delay in lodging her unfair dismissal application in the period between 7 October and 2 December 2021.

[39] The five lengthy medical reports before the Commission disclose varied diagnoses and opinions as to Ms Zelesco’s cognitive function and mental health. No expert was made available by the parties to explain these diagnoses. I nevertheless accept that while Ms Zelesco’s cognitive abilities were not demonstrative of a particular type of learning disability, Ms Zelesco’s overall mental health and cognitive abilities are such that she is at a “heightened risk of confusion.” 39 This is so given the most recent psychiatrist diagnosis of “a disorder in the paranoid spectrum” or “a low grade psychotic illness” which pre-dated the Medical Retirement Letter by one day and constitutes objective evidence of Ms Zelesco’s mental health.40

[40] The Board report acknowledged Ms Zelesco’s confusion as to the effect of the Medical Retirement Letter in the following way:

“…Ms Zelesco seemed confused as to whether she wished to appeal the decision to retire her and initially seemed accepting of this, after her failed attempt to progress a resumption of duty. However, she seemed confused as to the difference between a redundancy and a medical retirement as she indicated that she was of the belief that she was entitled to a redundancy or a monetary benefit equal to that of a redundancy for her medical retirement to proceed. Mr Allison attempted to clarify via email on more than one occasion that this was not the case and at this point, Ms Zelesco then indicated she wished to appeal the decision.” 41

[41] There is no evidence of any other written correspondence from Australia Post to Ms Zelesco between the issuing of the Medical Retirement Letter and the Board’s report.

[42] The Medical Retirement Letter set out the steps that Ms Zelesco could take to seek an internal review of the “medical retirement” decision (including the timeframe for doing so). However, the Medical Retirement Letter did not explain the potential outcomes of the internal review. Nor did the letter explain that other avenues of redress may be available in the Commission or elsewhere, including that strict time limits may apply to such applications.

[43] In this respect, various Commission decisions have had cause to examine Australia Post’s termination letters and internal review procedures in the context of an application for an extension of time. These decisions turned on their own facts. There are circumstances where employees were advised that legal remedies may be available under the Act and are subject to time limits. 42 However there are also situations where employees have, like Ms Zelesco, been advised by Australia Post of their right to lodge an internal review but not of their rights under the Act. In such cases, the Commission has made the following observations.

[44] In Schmidt v Australia Post 43 it was said:

“There is weight in favour of the applicant in the wording of the respondent's letter of termination which makes specific reference to one form of redress should the applicant believe his termination to be harsh, unjust or unreasonable. There is no reference to an application under the Act. It is my view that the letter of termination on this point was in need of more explanation or precision. Employees who have their employment terminated (if they are to be advised of their options for recourse) should be advised that proceedings before the Board of Reference may take longer than 21 days and that applications to the Commission need to be lodged within 21 days of the date of effect of the termination. It is also appropriate that employees be advised that should they believe their termination to be harsh, unjust or unreasonable, that they may choose to seek a review by the `Board of Reference' or make application under the Workplace Relations Act 1996 or both. Alternatively, the letter of termination should not provide any information concerning employees' rights to contest the decision to terminate.” 44

[45] Similarly in Goss v Australia Post 45 it was held:

“In the circumstances of this case, where the Agreement does not by its terms postpone the effect of a notice of termination of employment pending a review of the decision it was incumbent on Australia Post, in circumstances where it has referred the employee to the right of review under the Agreement, to either caution the applicant about the exercise of a right of review being inconsequential to the date the termination of employment takes effect or otherwise alert the employee to the separate right of review under the WR Act.” 46

[46] I find that the content of the Medical Retirement Letter, which expresses Australia Post’s decision that Ms Zelesco be “medically retired” and not “dismissed,” had the effect of confusing Ms Zelesco, as it did Mr O’Nea. In light of the medical evidence as to Ms Zelesco’s overall cognitive function and mental health, I find that Ms Zelesco’s confusion was reasonable.

[47] Further, the evidence discloses that Ms Zelesco was not made aware by either the Medical Retirement Letter or by Mr O’Nea that external avenues of redress may be available. The Medical Retirement Letter apprised Ms Zelesco of one form of redress only and, in the circumstances, required more explanation or precision.

[48] Despite Mr O’Nea providing advice and assistance to Ms Zelesco regarding the internal review, there is no evidence that Mr O’Nea informed Ms Zelesco of her right to make an application for an unfair dismissal remedy in the Commission or the timeframe for doing so. Indeed, Ms Zelesco’s position is that Mr O’Nea did not so advise her, notwithstanding that Ms Zelesco had made clear her desire to challenge the dismissal by lodging the internal review.

[49] Ms Zelesco lodged her application for an unfair dismissal remedy 14 days after the conclusion of the internal review. This occurred after Ms Zelesco enquired of Mr O’Nea if she could proceed to make an unfair dismissal application. Mr O’Nea advised against such a course on the basis that an application for an unfair dismissal remedy was not open to Ms Zelesco.

[50] It is against this unique factual background that Ms Zelesco’s contention of representative error is to be considered. The general propositions to be taken into account in determining whether representative error constitutes an acceptable explanation for delay in the context of an application for an extension of time are as follows: 47

(a) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(b) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.

(c) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(d) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[51] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a representative in a timely fashion. 48 However, a contention of representative error directed at an industrial organisation is to be considered in a different context, noting that a union does not act for its members on the same basis as a legal practitioner does for a client. Despite this, having determined to pursue a particular course of action on behalf of a member, a union can be expected to act competently and diligently.49 To this end, the observations made by the Full Bench in Smart v Australian Postal Corporation50 are apt:

“…it is reasonable for employees to expect their union to advise them correctly with respect to termination of employment matters. A failure by a union to do so would not normally weigh against the employee. However, in circumstances where the employee is on notice that a time limit is applicable failure to seek advice on what time limits might apply will weigh against a finding that there was an acceptable reason for the delay in lodgment. In each case, of course, all of the circumstances must be taken into account.”

[52] I accept Ms Zelesco’s evidence that she was not made aware of her ability to lodge an unfair dismissal claim in the Commission by the union or the timeframe for doing so. This position is supported by Mr O’Nea’s evidence that:

(a) Mr O’Nea held the erroneous view that “the 21 days clock didn’t start ticking” at least until the Board had determined the outcome of Ms Zelesco’s internal review; and
(b) in any event, Mr O’Nea did not “join the dots” and equate the concept of a medical retirement to a dismissal.

[53] While mere ignorance of the statutory time limit is not an exceptional circumstance, 51 Ms Zelesco’s submission is different: I accept that Ms Zelesco “was not made aware” of her ability to lodge an unfair dismissal claim in the Commission by the union. In light of the material before the Commission evidencing Ms Zelesco’s cognition and overall mental health, and the union’s history of assisting her, it was reasonable for Ms Zelesco to expect the union to advise her competently with respect to termination of employment matters. The failure on the part of the union to diligently advise Ms Zelesco, in the specific circumstances of this case and taking into account Ms Zelesco’s evident desire to challenge the dismissal, amounts to representative error. The error arises on account of Mr O’Nea’s failure to advise Ms Zelesco of her statutory rights and the time limits that apply and arises from the time Ms Zelesco and Mr O’Nea spoke in late September about the internal review, being before the first day of the delay on 7 October 2021. Furthermore, an error arises in the provision by Mr O’Nea of incorrect advice regarding the unavailability of an unfair dismissal application in November 2021.

[54] Having regard to the conclusions reached, I find that the matters relied upon by Ms Zelesco to explain the delay in lodging her unfair dismissal application, when taken together, constitute an acceptable reason for the entire period of the delay. This favours the grant of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

[55] Having regard to my earlier findings, I accept Ms Zelesco’s contention 52 that she was not aware that her dismissal had taken effect on 15 September 2021. Rather, Ms Zelesco held the view that “an official Medical retirement would not take place until after the medical Board of Reference made a final decision.”53 In the present circumstances, this is a factor which weighs in favour of an extension of time.

Action taken by the person to dispute the dismissal: s 394(3)(c)

[56] Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that its decision to terminate the employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time. 54

[57] Australia Post submits that Ms Zelesco effectively took no steps to educate herself about options other than the internal review process and this should weigh against her. 55 However, in lodging the internal appeal, Ms Zelesco took steps to dispute the dismissal. This is a factor which weighs in favour of an extension of time.

Prejudice to the employer: s 394(3)(d)

[58] A long delay gives rise to a general presumption of prejudice, 56 and the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.57 

[59] Australia Post contends that it has supported Ms Zelesco over a period of almost two years in an effort to return her to work. It participated in a robust internal review process which concluded that the decision to dismiss Ms Zelesco was not harsh, unjust or unreasonable. Australia Post submits that it would be materially prejudiced by the grant of an extension of time which would require it to hold open the possibility of reinstatement. 58

[60] Alternatively, Australia Post says that if the Commission considers that granting an extension of time would occasion no real prejudice, the Commission should regard this factor as a neutral consideration. 59

[61] The prejudice that Australia Post contends it will suffer if an extension is granted largely arises on account of Australia Post’s election to provide an internal review mechanism, notwithstanding Ms Zelesco’s rights under the Act. In the circumstances, I do not consider any material prejudice to arise and I regard this as a neutral consideration.

Merits of the application: s 394(3)(e)

[62] For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application. 60 However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.61

[63] Ms Zelesco contends that her merits case has some prospect of success. She argues that the psychiatrist initially recommended that she return to work in a location other than the Dandenong Letter Centre. However, Ms Zelesco says that Australia Post ignored this and required Ms Zelesco to engage with the Facility Manager at the Dandenong Letter Centre regarding her return to that location. It is submitted that this caused Ms Zelesco stress and anxiety, culminating in her sending the emails which led to the change in the psychiatrist’s assessment of her work prospects. In addition, Ms Zelesco contends that the psychiatrist’s revised opinion was based solely on the psychiatrist’s review of the documentary materials, rather than upon any further assessment of Ms Zelesco or consideration of the circumstances in which they were sent. 62

[64] Australia Post submits that it had a valid reason for dismissing Ms Zelesco. It says that Ms Zelesco had been absent from work on unpaid leave for eight months beyond the mandatory 78-week continuous absence period under the Agreement and was provided with every possibility to return to work. It submits that the decision to medically retire Ms Zelesco was not harsh, unjust or unreasonable in light of the medical evidence which does not support her return to work. It relies upon the Board’s conclusion to demonstrate that the merits of Ms Zelesco’s application have already been considered by the internal review. 63

[65] A review of the material discloses that the psychiatrist recommended that Australia Post attempt to find Ms Zelesco alternative duties in a part time position but indicated Ms Zelesco was fit to perform the inherent requirements of her Mail Officer role. 64 Australia Post proceeded on the basis that Ms Zelesco would return to the Dandenong Letter Centre on a graduated basis, noting that while Ms Zelesco may have a preference for work in another location, she would initially return to her nominal position.65 It is apparent that the subsequent psychiatrist report was based solely off the documentary material and Ms Zelesco was not further assessed in person.66 The emails said to have been subsequently sent by Ms Zelesco are not before the Commission. Accordingly, the substantial merits of Ms Zelesco’s application are not able to be fully examined at this stage of the proceeding. I therefore regard the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[66] Ms Zelesco submits that all persons should have the right to challenge “being medically retired or dismissed from Australia Post medical board of reference.” 67

[67] Australia Post contends that it would be unfair for other persons in Ms Zelesco’s position if her application were allowed to progress given that there is no reasonable or credible explanation for the delay; Ms Zelesco had the benefit of assistance from the union; Ms Zelesco’s merits case has already been reviewed by the independent Chair of the Board; the factors set out in s 394(3) do not support an extension of time in Ms Zelesco’s circumstances; and recent decisions of the Commissions have declined to grant an extension of time. 68

[68] Australia Post referred me to recent decisions of the Commission in which extensions of time were not granted. 69 However, cases of this kind generally turn on their own facts. These matters do not deal with substantive issues that are similar in kind to the unique factual circumstances of Ms Zelesco.

[69] Section 394(3)(f) is concerned with the consistent application of principles in cases of this kind. This consideration may relate to matters currently before the Commission or others previously decided by the Commission. As observed by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd 70 the existence of representative error where the applicant has not contributed to the error and absent other countervailing factors will typically justify a conclusion of exceptional circumstances. The principle that errors of a representative should not be visited upon an applicant should be fairly applied.71 In the specific circumstances of this case, considerations of fairness between Ms Zelesco and persons in a similar position weigh in favour of an extension of time.

Are there exceptional circumstances?

[70] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am satisfied that there are exceptional circumstances when the various circumstances are considered together.

Disposition

[71] As I am satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made. In the circumstances, I consider it is appropriate to extend the timeframe for lodgement of Ms Zelesco’s unfair dismissal application to 2 December 2021, being the date that it was lodged with the Commission.

[72] Australia Post’s jurisdictional objection with respect to the timeframe for lodgement is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740040>

Appearances:

Mr M O’Nea on behalf of the applicant

Mr S Crook on behalf of the respondent

Hearing details:

22 March 2022, by Microsoft Teams

Final written submissions:

21 March 2022

 1   Court Book (CB) 33

 2   CB 160

 3   CB 58-72

 4   CB 88

 5   CB 5

 6   CB 133-135

 7   CB 90; 91-92

 8   AE425065

 9   CB 6

 10   CB 152

 11   CB 93-109; 110-111

 12   CB 112-123

 13   CB 124-125

 14   CB 126-128

 15   CB 164-165

 16   CB 5-8

 17   CB 15

 18   Burns v Aboriginal Legal Service of Western Australia (Inc) (Print T3496) (AIRCFB) at [24]

 19   [2016] FWCFB 5500 at [36]

 20   [2017] FWCFB 4033

 21   Ibid at [31]-[32]

 22   [2018] FWCFB 4109 at [14]

 23   CB 164-165

 24   Agreement, cl 21.16 and 21.17; the Agreement also provides for the situation where a person retired on medical grounds returns to work cl 21.18

 25   CB 92

 26   CB 22

 27   CB 23

 28   CB 193

 29   CB 194

 30   Cf, Muldoon v Australia Post [2020] FWC 2496 at [14]-[15] discussing Schmidt v Australia Post PR915006 [2002] AIRC 240 (6 March 2002)

 31   [2011] 203 IR 1

 32   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

 33   Ibid

 34   Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

 35   Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

 36   CB 22

 37   Ibid

 38   CB 177-178

 39   See Jason Cannon v Quad Services [2019] FWCFB 2097 at [27]

 40   Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) [2015] FWCFB 287 at [52]

 41   CB 188-189

 42   See Smart v Australia Postal Corporation [2008] AIRCFB 124; Carlito Cruz v Australia Postal Corporation [2008] AIRCFB 452; Buellsbach v Australian Postal Corporation (tas Australia Post) [2015] FWC 3848; Krnjeta v Australian Postal Corporation TA Australia Post [2016] FWC 8815; Muldoon v Australia Post [2020] FWC 2496

 43   Schmidt v Australia Post PR915006 [2002] AIRC 240 (6 March 2002)

 44   Ibid at [11]

 45   PR924568 [2002] AIRC 1384 (13 November 2002)

 46   Ibid at pp.6-7; See also Norman v Australian Postal Corporation v PR950442 [2004] AIRC 797 (16 August 2004)

 47   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9; see also C. Davidson v Aboriginal & Islander Child Care Agency, Print Q0784 (12 May 1998), ; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [25]; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 at [17]; Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802 at [18]; Long v Keolis Downer [2018] FWCFB 4109 at [52]

 48   Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 at [17]; see also Long v Keolis Downer [2018] FWCFB 4109

 49   Alexander Mirow v Suez Pty Ltd [2020] FWCFB 3169 at [27]

 50   [2008] AIRCFB 124 at [7]

 51   Nulty v Blue Star Group Pty Ltd at [14]

 52   CB 23

 53   Ibid

 54   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

 55   CB 179-180

 56   Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556

 57   C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38]

 58   CB 180

 59   Ibid

 60   Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

 61   Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

 62   CB 21

 63   CB 180-181; CB 62 at 3.2

 64   CB 121-122

 65   CB 124-125

 66   CB 126-127

 67   CB 23

 68   CB 182

 69   McClelland v New Horizons Pty Ltd T/A New Horizons [2020] FWC 5075; Emerton v Australia Post Corporation T/A Australia Post [2020] FWC 5309; Bitar v Australian Postal Corporation T/A Australia Post [2020] FWC 6095

 70   Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

 71   Ibid at [42]