Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] Mr Ahmed Habib (the Applicant) lodged an application seeking an unfair dismissal remedy on 14 December 2018. The Applicant claims that he was unfairly dismissed by A-Tech Australia Pty Ltd (the Respondent) on 22 November 2018.

[2] Section 394(2) of the Fair Work Act, 2009 (the Act) provides that a person who has been dismissed from their employment must make an application to the Fair Work Commission (the Commission) within 21 days of the dismissal taking effect. However, the Commission may allow a further period of time for the application to be made in exceptional circumstances.

"Section 394(2)

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)"

[3] The Respondent has raised a jurisdictional objection to the application on the basis that the application has been lodged outside of the statutory time limit of 21 days. The jurisdictional hearing was conducted on 10 April 2019.

[4] Leave had previously been granted in accordance with section 596(2) of the Act to allow Mr Michael Cobcroft, Solicitor from KPL Lawyers, to represent the Respondent.

[5] The Applicant commenced employment with the Respondent on 18 May 2018.

[6] The Applicant is a practicing member of the Islamic faith. The Applicant would attend Friday afternoon prayers at the Mosque on a regular basis. The Applicant's attendance at the Mosque on Fridays, allegedly, was causing co-ordination problems at the building site where he was employed.

[7] The Applicant claims that he reached an agreement with the Respondent in relation to the location and time for the Applicant to pray each day.

[8] The Applicant breached this alleged agreement on 14 November 2018 when he left site and attended the Mosque between 12.45pm and 2.30pm. The Applicant was advised by his Supervisor that his services would be terminated.

[9] The Applicant sought advice on or before 20 November 2018 from a service provider called Unfair Dismissals Direct (UDD). The Applicant did not follow up or engage UDD.

[10] The Applicant was formally dismissed by email from the Respondent's General Manager on 21 November 2018 at 5:18pm.

[11] Whilst I object to any termination being undertaken by email or text, I note that the Applicant did not attend for work on 22 November 2018.

[12] The parties have agreed that the termination date was 22 November 2018. I am of the view that the actual termination date was 21 November 2018, ie, one day earlier, however, the Applicant's application was lodged outside of the statutory timeframe irrespective of whether the termination occurred on 21 or 22 November 2018.

[13] When considering whether to grant an extension of time in accordance with section 394(2)(b) of the Act, the Commission, as presently constituted, must be satisfied of the existence of exceptional circumstances. Relevantly, section 394(3) of the Act states;

"Section 394

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

(f) fairness as between the person and other persons in a similar position."

[14] The principles to determine whether "exceptional circumstances" exist in a particular scenario are well established and were set out in a decision of a Full Bench of Fair Work Australia (now the Commission) in Nulty v Blue Star Print Group Limited[1] where it was held:

"[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."

Section 394(3)(a) - Reason for the delay

[15] The Applicant claims that he wasted 1 week of his 21 day period when dealing with Unfair Dismissals Direct (UDD). The Applicant claims that he did not proceed with their service because he did not know how much money it would cost for him to be represented by UDD and that UDD had requested more information and evidence about his termination.

[16] This claim is simply inaccurate. UDD sought further information from the Applicant on 20 November 2018, which was prior to the Applicant receiving the email terminating his employment. I find that there was absolutely no part of the statutory timeframe absorbed by the Applicant's interaction with UDD. I have taken this with account.

[17] The Applicant also claimed to be confused as to this termination date and simply put down the date that he received in the email. However, as noted earlier, the email from the Respondent was sent on 21 November 2018, not 22 November 2018. I have taken this into account.

[18] The Applicant claims that he experienced difficulties in completing his application online via the Commission's website. As a result, the Applicant claims that he sent his application by Express Post on the 20th day after his termination but that the Commission did not process his application until the 22nd day (ie 14 November 2018).

[19] This assertion is also inaccurate. The Applicant attached a money order with his application. During the Hearing, I asked the Applicant to produce his Express Post receipt and any documentation that he may have in relation to the money order. The Applicant promptly provided the Commission with this information at 1pm on the afternoon of the Hearing. I note that the Express Post envelope and Money order were purchased at the Australia Post shop located at Westfields Parramatta around 4pm on 13 December 2018. The Applicant's application was processed by the Commission at 1pm the following day, 14 November 2018. This evidence clearly shows that there was no delay with the Applicant's application due to the actions of either Australia Post or the Commission. I have taken this into account.

[20] The Applicant also advised that he found it difficult to stay positive after losing his job whilst at the same time going through divorce proceedings.

[21] The Applicant did not provide any medical evidence in relation any stress, anguish or medical treatment that he had experienced in the period 22 November - 13 December 2018. I have taken this into account.

[22] I acknowledge that the Applicant was in the latter stages of divorce proceedings when he was terminated. I accept that this scenario is most unfortunate and note that the proceedings were not commenced by himself, however, the Applicant had been separated from his wife for many months. I note that the divorce was ratified by the Federal Circuit Court on 10 January 2019. I have taken this into account.

[23] I am not satisfied that the Applicant has provided a credible explanation for the late filing of his application. Even allowing for the generous interpretation of the termination date by the Respondent, the Applicant's application is one day late.

[24] I find that, on balance, that there were no valid reasons put forward by the Applicant which would identify the existence of an exceptional circumstance.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant was advised by email on 21 November 2018 that he was dismissed. The Applicant did not attend for work on 22 November 2018 or on any day after the email. It is clear that the Applicant regarded this email as a notice which terminated his employment. I have taken this into account.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

[26] As identified previously the Applicant contacted UDD before he was actually terminated. The Applicant did not follow up his claim with UDD. The Applicant has not contacted the Respondent to object to his termination.

Section 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[27] The Respondent has made no submissions in relation to prejudice. In Brodie Hanns v MTV Publishing Pty Ltd[2] it was held:

"3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

1. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time."

Section 394(3)(e) - the merits of the application

[29] The Applicant commenced employment with the Respondent in April / May 2018. The Applicant had a very brief employment career with the Respondent. The Respondent claims to have summarily dismissed the Applicant for serious and wilful misconduct due to the Applicant knowingly and deliberately breaching a lawful instruction.

[30] In Kornicki v Telstra Network Technology Group[3], the Commission held:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[31] In Kyvelos v Champion Sock Pty Ltd[4], a Full Bench of the Commission held:

"[14]...The Commission should not embark on a detailed consideration of the substantive case."

[32] Taking into account the obiter in Kornicki and Kyvelos, I am satisfied that it would be inappropriate for the Commission to make any comment in relation to the merits of the matter. I find that this issue is a neutral consideration in my determination.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[33] I am not aware of any other employee of the Respondent in a similar situation to the Applicant. I have taken this into account.

[34] I have carefully considered all of the evidence and submissions that have been provided by the parties.

[35] Of relevance is the decision of Gostencnik DP in Glumac v Sea Road Logistics t/a Sea Roads[5], where His Honour held:

"[22] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost."[6]

[36] I accept that the Applicant's application is only one or two days late. Such an occurrence is extremely unfortunate but I agree with the obiter in Glumac. If the Parliament had wanted the statutory time limit to be 22 days or 23 days then it would have legislated for a level of flexibility in the statutory time limit.

[37] After taking into account all of the matters referred to in section 394(3) of the Act and the submissions and evidence of the parties, I am satisfied and find that the lateness of the Applicant's application was not due to the existence of an exceptional circumstance.

[38] The jurisdictional objection of the Respondent is upheld.

[39] The Applicant's unfair dismissal application is dismissed.

[1] [2011] FWCFB 975

[2] (1995) 67 IR 298 at PN[300]

[3] Print P3168, per Ross VP, Watson SDP and Gay C

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421, Print T2421

[5] [2018] FWC 4607

Printed by authority of the Commonwealth Government Printer