FWA 1033
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Madeleine Ellis
Melton Shire Council
MELBOURNE, 8 FEBRUARY 2012
Application for Extension of time—exceptional circumstances—cognitive incapacity—extension granted.
 Ms Madeline Ellis has made an application to the Tribunal under s. 365 of the Fair Work Act 2009 (the Act). Ms Ellis was an employee of Melton Shire Council (the respondent). The application was made on 1 December 2011. The provisions of s.365 of the Act are set out below:
“365 Application for FWA to deal with a dispute
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.”
 Section 366(1) of the Act prescribes when an application under s.365 of the Act must be made as follows:
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).”
 Miss Ellis was employed by the respondent as an economic development project officer. The employment was terminated at the initiative of the respondent on 15 August 2011. Consequently, the application was made 48 days after the period provided for by s.366(1)(a) of the Act.
 Ms Ellis has applied to the Tribunal for a further period to that so prescribed to be allowed for the making of her application. The application for this further period to be allowed is opposed by the respondent.
 The application for a further period to be allowed was heard on 21 December 2011 and 2 February 2012. Mr B Shaw, of counsel, was granted permission to represent Ms Ellis and Mr G Katz, a solicitor, was granted permission to represent the respondent.
 Consideration of Ms Ellis’ application for a further period to make the application under s.365 of the Act is governed by the provisions of s.366(2) of the Act. Those provisions are set out below:
“(2) FWA may allow a further period if FWA 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.”
 The statutory provisions of s366(2) of the Act constitute discretionary power conferred upon the Tribunal, to be exercised in accordance with the directions set out therein. The discretion should be exercised soundly and in the interests of justice.
 Ms Ellis and Dr L Alexander gave evidence in support of the application. No witness evidence was called by Mr Katz in opposition to the application.
 Dr Alexander is a registered psychologist who has provided therapeutic counselling to Ms Ellis. Dr Alexander’s qualifications are as follows:
“B.A. (Psych Hons)., B.App.Sci., M.A., (Clin Psych)., PhD
MAPS, Member APS Colleges of Clinical and Counselling Psychology”
 It was Dr Alexander’s evidence that around the time of the termination of Ms Ellis’ employment and immediately thereafter Ms Ellis was severely psychologically incapacitated and unable to function normally for three months after the termination. Notwithstanding this, Ms Ellis made a number of occasional efforts to pursue her legal rights without success. Dr Alexander explained the condition Ms Ellis was suffering from. The doctor explained that a person in Ms Ellis’s condition would experience occasional moments of cognitive competence, which would enable momentary action on her grievance concerning the termination of her employment, which would quickly be followed by submergence into cognitive dysfunction. On my observation, the evidence of Ms Ellis of her experience between the time of the termination of her employment and the making of the application is consistent with Dr Alexander’s diagnosis and expert evidence of the relevant condition.
 Mr Katz submits that Dr Alexander’s evidence should be rejected in this respect, particularly having regard to document Exhibit A4 and Ms Ellis’ evidence, which shows various occasions of attempts by Ms Ellis to pursue her legal rights. Mr Katz submits that these attempts should be considered evidence of adequate capacity to make the application within the time prescribed by s.366(1)(a) of the Act.
 I am unable to see good reason to reject Dr Alexander’s evidence and explanation of the relevant events in the context of the condition diagnosed by her as a clinician and her expertise in the field of mental illness. I accept Dr Alexander’s evidence in this and all other respects as truthful and expert for my purposes.
 Ms Ellis gave evidence that between the commencement of her employment and its termination she was bullied at work and had complained of this to the respondent. She testified that this caused her stress and anxiety.
 Ms Ellis also gave evidence of her attempts to seek redress in relation to the termination of her employment, including contact with the Fair Work Australia information service. Ms Ellis gave evidence that she was told by that service that since she was not employed for more than six months by the respondent she could not made an application to Fair Work Australia in relation to the termination. If the conversation was confined to the subject of an application for relief due to alleged unfair dismissal under s.394 of the Act the statement was correct. It seems there was no conversation concerning the General Protections provisions of the Act. It is notable that Ms Ellis’ first contact with Fair Work Australia was on the day of the termination of her employment.
 On the evidence before me, it is more likely than not that Ms Ellis’ cognitive ability was severely impaired following the termination of her employment and for the time evidenced by Dr Alexander thereafter. I also think it more likely than not that Ms Ellis was experiencing stress and anxiety at the time of the termination of her employment due to what she had reported as bullying at work. I consider that her ability to independently investigate and act upon the General Protections provisions of the Act in the circumstances following the termination of her employment was extremely limited. Dr Alexander gave evidence that immediately following the termination of her employment Ms Ellis was unable to leave her home for some time. Dr Alexander gave the following evidence in this respect:
“…initially I was very concerned about her because all she could do was curl up in a bed and I really was watching very carefully about what would transpire.” 1
 I turn now to consider the matters set out in s.366(2) of the Act in the order in which they appear in the Act.
The reason for the delay
 I find that Ms Ellis was suffering from severe impairment of her cognitive capacity to make the application within the period between the termination of her employment until sometime not long before it was made. From the evidence contained in Exhibit A2 it appears Ms Ellis’ condition improved in the period between October 14 and November 30, 2011. Additionally, Ms Ellis’ ability to make the application was affected by an impression she gained from her contact with the Fair Work Australia information line that she could not make an application under the Act because of the period of her employment.
 The combination of the condition established by Dr Alexander’s evidence and mistaken focus on unfair dismissal remedies would have more likely than not given rise to the experience described by Ms Ellis as “like drowning”. This accords with Dr Alexander’s descriptive evidence of the psychological condition Ms Ellis suffered after the termination of her employment. Alternately, having some momentary functional capacity to seek to pursue her grievance about the termination of her employment and submerging into significant cognitive impairment.
Action taken to dispute the dismissal
 Consistently with Dr Alexander’s description of Ms Ellis’ condition and her periodically fluctuating cognitive capacity, Ms Ellis occasionally and not entirely infrequently persisted in attempting to find ways to dispute the termination of her employment as a wrong. The evidence shows these attempts clearly, particularly Exhibit A4 and Ms Ellis’ evidence given under cross-examination.
Prejudice to the employer
 On what is before me the respondent has not established that any prejudice of the relevant kind would arise if the application were accepted. There is no evidence of turnover of personnel or issue of decaying memory which would prevent the respondent from defending the application if a further period was allowed for it to be made.
The merits of the application
 The parties have agreed that for the purposes of this decision the merits of the application should be considered neutral.
 For the discretion to allow a further period for Ms Ellis to make an application under s.365 of the Act the Tribunal must be satisfied, on the evidence and material before it, that there are exceptional circumstances taking into account the matters dealt with above. The parties have both submitted that the relevant Full Bench Authority which should guide my Decision of this question is Cheyne Leanne Nulty v Blue Star Group Pty Ltd 2. In that Decision the following is stated:
“ The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5
“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  Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward)  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.
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.”
 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.”
 On the evidence before me I am satisfied that there were exceptional circumstances prevailing in the form of the severe mental incapacity of Ms Ellis during the delay in the making of the application in this matter. In coming to this conclusion I note that it is more probable than not that, as a general proposition, most employees will experience a degree of stress and anxiety where the termination of their employment occurs at the initiative of their employer. I consider this a notorious fact. No doubt the degree of such stress or anxiety will vary according to the individual circumstances of each person who experiences such a termination. While a degree of anxiety and stress can be considered as not unusual in such situations, the issue for my consideration in this matter is whether the particular circumstances affecting Ms Ellis were such as might be considered outside the usual course, and the time when the application was filed.
 In my judgment the evidence of Dr Alexander and Ms Ellis, but particularly, for my purposes, the former, establishes that Ms Ellis suffered from a severe impairment to her cognitive capacity in the form of psychological and associated physical consequences arising from the termination of her employment by the respondent which can properly be considered well beyond the usual level which might be associated with the termination of an employee’s employment. These exceptional circumstances comprehensively diminished Ms Ellis’ capacity to file the application in this matter. This favours allowing the further time required for the acceptance of the application.
 Ms Ellis, in my view, did as much as she was capable of to contest the termination of her employment both contemporaneously and subsequently, according to her condition and the particular circumstances. This favours allowing further time for the acceptance of the application.
 There is no prejudice to the employer which would arise from accepting the application. In my view, this factor is neutral for the purposes of the exercise of the Tribunal’s discretion.
 Likewise, in light of the parties’ agreement, the merits of the application are a neutral consideration.
 Finally, there are no other employees in a like position to Ms Ellis whose circumstances should be considered. In this respect, there is no relevant consideration for the purposes of the Tribunal’s discretionary consideration.
 Accordingly, I have decided that there are exceptional circumstances and that I should exercise the discretion to allow until the date of the application as a further period for the making of the application by Ms Ellis. I will Order accordingly.
Mr B Shaw, of Counsel for the applicant
Mr G Katz, a solicitor, for the respondent
1 Paragraph 79 of the transcript of proceedings.
2  FWAFB 975
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