Fair Work Act 2009

s.394 - Unfair dismissal

Benleader Pty Ltd T/A Victorian International Academy

[1] On 5 March 2019, Mr Arfan Ikram filed an application (the Application) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] There is dispute as to the date upon which Mr Ikram's employment with Benleader Pty Ltd T/A Victorian International Academy (VIA) was terminated. While VIA claims Mr Ikram's employment was terminated on or about 1 January 2019, I have outlined below at [20] why I decline to make such a finding for the purpose of determining the Application.

[3] Mr Ikram's position is that the termination occurred on 29 January 2019. As to this, the parties do not dispute that there was a conversation between Mr Lakhmir Mahar, CEO of VIA, and Mr Ikram on 29 January 2019. I consider this conversation removed any doubt as to whether Mr Ikram's employment with VIA was terminated and both parties agree that in this conversation, the termination notified had immediate effect. As outlined below at [24] below, I have decided to proceed on the basis that Mr Ikram's employment was terminated with immediate effect on 29 January 2019. Therefore, taking Mr Ikram's case at its highest, the Application made on 5 March 2019 was made 14 days late. It was not made within 21 days after the date the dismissal took effect, as required under s.394(2)(a) of the Act.

[4] The reason given by Mr Ikram for the 14 day delay was set out in answer to Question 1.5 in the Form F2 - Unfair dismissal application (Form F2), as follows:

"My employer gave me one month of termination notice starting from 29th January 2019 to 28th February 2019, and advised me not to come to the office as he will pay me one month salary in lieu as on 15th February 2019. He promised to clear all of my other dues as well. He did not pay my one month notice period salary until 22nd February 2019. He also did not clarify me whether he terminated me against redundancy or not. I asked him about my 4 weeks redundancy entitlement, but he always used delaying tactics and avoid giving me any clear answer. He did not pay my paid leaves as well. He deliberately delaying my payments.

I was confused whether I am entitled for redundancy or should I claim for my unfair dismissal. Now, I believe that my termination was unjustified and unfair. I detailed the reasons here - under in 3.2."

[5] In its Form F3 - Employer response to unfair dismissal application (Form F3), VIA objected to the Application on the following bases:

• The application is out of time (ie lodged more than 21 days after the dismissal took effect);

• The dismissal was a case of genuine redundancy; and

• The employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code.

[6] This decision only concerns whether I should exercise my discretion to allow Mr Ikram a further period of time for the Application to be made.

[7] This matter was originally listed for an Extension of Time Conference/Hearing on 10 May 2019 and subsequently rescheduled to 5 July 2019 at Mr Ikram's request, due to his being overseas with an expected return date on 30 June 2019. The file was allocated me on 28 June 2019.

[8] On 28 June 2019, Mr Ikram emailed the Commission requesting the hearing be delayed until 30 August 2019 because he was overseas due to "some family problems". In response, I caused correspondence to be emailed to Mr Ikram seeking details by 3 July 2019 of his return flight to Melbourne.

[9] No response was received from Mr Ikram. On 4 July 2019, Mr Vincent Caruso of Hicks Oakley Chessell Williams, solicitor for VIA, wrote to the Commission requesting that Mr Ikram's application for an extension of time be determined on the papers.

[10] Later the same day, I caused correspondence to be sent to the parties advising that due to a factual dispute arising out of the materials filed, s.397 of the Act required a hearing to be conducted. The correspondence further advised the parties of my intention to conduct the hearing on 26 July 2019, with evidence from Mr Ikram to be taken over the telephone. On 10 July 2019, a Notice of Listing was sent to the parties outlining the matter was listed for Jurisdiction Conference/Hearing on 26 July 2019.

[11] On 26 July 2019, Mr Ikram was still overseas and appeared by telephone. I determined that the matter should proceed as a determinative conference.

[12] Mr Caruso sought permission to represent VIA. After considering oral submissions from the parties on this issue and having weighed the circumstances and considerations in s.596 of the Act, I granted permission for VIA to be legally represented.

[13] Mr Ikram gave evidence in support of his application for an extension of time. Mr Mahar gave evidence on behalf of VIA.

Was the employment terminated on 1 January 2019?

[14] Mr Ikram commenced employment with VIA on or around 17 July 2017 as a Business Development Manager, a position he appears to have held until his employment with VIA ended.

[15] Mr Ikram says he became aware in December 2018 that VIA's business was being sold to new owners and that Mr Mahar had been appointed the new CEO. A Sale Agreement dated 5 December 2018 supports this contention.

[16] Mr Ikram said his understanding was that the new management team would retain all the existing employees of VIA and he took this to mean that he would continue working in his position as a Business Development Manager under VIA's new ownership.

[17] Mr Mahar gave evidence that he was present during discussions regarding the contract of sale of the business with the previous owner, Mr Ali Javed, and the new owner, Ms Rachna, on 5 December 2018. He said that in this discussion, Mr Javed was advised VIA could not afford to keep Mr Ikram and that Mr Javed said he would inform Mr Ikram that he was not going to be employed. Further, Mr Mahar said that Mr Javed told him, on 14 January 2019, that Mr Ikram was no longer employed.

[18] Mr Ikram contested Mr Mahar's version of events. He said he was never terminated by Mr Javed and that in the first week of January 2019, all VIA's existing employees learned that the settlement for the sale of business had not yet been finalised and the settlement date was in dispute. Mr Ikram further said that the new management personnel were not permitted by Mr Javed to enter the premises of VIA nor operate VIA's business until and unless settlement was finalised. Mr Ikram further said that during this time, Mr Javed instructed all VIA's employees to take leave and not attend work and told them they would not be paid for the "layover period" until settlement had been finalised. Mr Ikram contends that the settlement occurred on 21 January 2019 and that the new management team took over the control of VIA thereafter. He says there was nothing in the contract for the sale of business that indicated that his employment was to be terminated.

[19] Mr Mahar said that although the settlement date ended up being on 21 January 2019, new management had taken control of the facility effective from 1 January 2019 and between 1 January 2019 and 28 January 2019 inclusive, Mr Ikram neither attended the office nor sent correspondence to VIA advising of his whereabouts. Further, Mr Mahar said that there was no record to suggest that Mr Ikram was on leave and in any event, VIA's records indicated Mr Ikram did not have a sufficient annual leave balance to enable him to be away from work for that length of time. Mr Mahar said that VIA had no reason to believe that Mr Ikram's employment was continuing because he was not present during the interviewing and hiring process that was conducted on 14 January 2019.

[20] Mr Ikram and Mr Mahar claim to have been told different things by Mr Javed but I did not hear directly from Mr Javed. In the absence of documentary evidence that conclusively establishes Mr Ikram's employment was terminated with effect on 1 January 2019, I decline to make such a finding for the purpose of determining the Application.

[21] In his witness statement, Mr Ikram said that upon arriving for work at VIA's premises on 29 January 2019, he was advised by Mr Mahar that a decision had been made to terminate his employment. He said he was not given a reason for his termination despite asking Mr Mahar for one. Mr Ikram said that in an effort to "[get] rid of [his] questions", Mr Mahar advised him that management had decided to terminate him with immediate effect and advised he would be paid his notice period salary on 15 February 2019. At the determinative conference, Mr Ikram confirmed that he was aware on 29 January 2019 that his employment had been terminated with immediate effect.

[22] In his witness statement, Mr Mahar said that on 29 January 2019, Mr Ikram came to the office "out of nowhere" and when he said that he was arriving for work, Mr Mahar said he told Mr Ikram his employment had been terminated by Mr Javed, effective 1 January 2019, and that VIA's new management had decided it could not afford to hire a Business Development Manager going forward. Mr Mahar said Mr Ikram then demanded four weeks' notice period, to which he replied that notice should have been paid to him by Mr Javed. Mr Mahar said that when Mr Ikram claimed he had not yet been paid, he offered to pay out the notice period stipulated in Mr Ikram's employment contract as a gesture of goodwill and said that he would do so on 15 February 2019. Mr Mahar said that Mr Ikram initially did not accept this, demanding the payment be made immediately. Mr Mahar said that after some discussion, Mr Ikram agreed to accept payment on 15 February 2019 and asked for this to be put in writing.

[23] Mr Mahar said he prepared the following email on 29 January 2019 in the presence of Mr Ikram before sending it to him, in order to confirm Mr Ikram's immediate termination and final payment:

This is to inform you that your employment with Victorian International academy is ending from 29/01/2019, with one month notice period ending on 28/02/2019.

You are no longer supposed to come to office from 29/01/2019 and your one month notice salary as per clause 13.0 employment contract will be paid on 15/02/2019..."

[24] It is not in dispute and I am satisfied that Mr Ikram's employment was terminated with immediate effect on 29 January 2019 and agreement was reached that he was to receive payment in lieu of notice on 15 February 2019.

[25] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s.394(3) of the Act. These are:

(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;

(d) prejudice to the employer (including prejudice caused by the delay);

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

[26] Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[27] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where the Full Bench said:

"[13] In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

[28] I will now address the legislative criteria.

[29] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[2] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[3] the Full Bench explained the approach to be taken by reference to the following example:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."[4]

[30] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. Although outlined in the context of a general protections application involving dismissal, the approach to be taken as explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis)[5] is instructive:

"[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

[31] The 21 day time period for Mr Ikram to make an unfair dismissal application pursuant to s.394 of the Act expired on 19 February 2019. As outlined in paragraph [3] above, the Application filed on 5 March 2019 was 14 days late.

[32] Mr Ikram claims Mr Mahar was wasting his time and setting out to confuse him. He accuses Mr Mahar of adopting delaying tactics to make the Application outside the 21 day period and claims Mr Mahar did not clarify the reason for his termination until 5 March 2019, at which point he "totally changed his behaviour" because he knew that Mr Ikram was no longer within the 21 day period to be eligible to seek a remedy for unfair dismissal from the Commission.

[33] I asked Mr Ikram when it was he realised there were rights to make an application for unfair dismissal remedy and that there is a 21 day time period within which to do so. Mr Ikram stated in reply:

• He started looking at both the Fair Work Ombudsman and Fair Work Commission websites on or about 23 or 24 February 2019;

• It was on or about 28 February 2019 or 1 March 2019, after having looked at the Fair Work Commission's website, that he realised he could make an unfair dismissal application and at that time he also became aware of the 21 day time limit, together with the fact he was "time-barred".

[34] Both of these events occurred after the 21 day time limit had expired.

[35] Mr Ikram said it was after 23 and 24 February 2019 that he began to realise why Mr Mahar was using delaying tactics and that after 1 March 2019 he began to appreciate that Mr Mahar had deliberately delayed in providing a reason and keeping him waiting for his pay until 22 February 2019 so that the 21 day period for an unfair dismissal application "was gone."

[36] As to the accusations made that he deliberately adopted delaying tactics, Mr Mahar said the payment was delayed until 22 February 2019 because up until then he had been unable to access the MYOB payroll system for VIA for the purpose of processing payments. He said this was because he had to wait for the director of VIA to appoint an accountant following the settlement of the sale of the business and then for this accountant to send the MYOB USB backup file to MYOB so that MYOB could retrieve it. Mr Mahar said this process could take one to two weeks and that access to MYOB was required to generate payslips and calculate the relevant taxation and superannuation. VIA submitted email correspondence it says illustrates some of the action it had to undertake before being able to pay Mr Ikram, commencing 14 February 2019.[6] Mr Ikram submitted that VIA should have started seeking access to the MYOB backup file earlier than 14 February 2019.

[37] Mr Mahar also said he had no knowledge of unfair dismissal laws prior to receiving notice of the Application. He said he did not read the content of the letter from the Commission dated 12 March 2019 notifying VIA of the Application but rather, rang VIA's accountant immediately. Mr Mahar said the accountant told him to come and see him the following day, at which time he was advised to consult a lawyer.

[38] Mr Mahar said he was not expecting Mr Ikram when he presented at VIA's offices on 29 January 2019. He said that he told Mr Ikram at the time that VIA could not afford him or any Business Development Manager. Mr Mahar said that Mr Ikram was initially only emailing him about pay, before moving to claim payment for leave and that it was not until 5 March 2019 that he first requested a reason for his termination. A number of emails were tendered in support of these contentions,[7] which I will now detail.

[39] At 10:17am on Wednesday 20 February 2019, Mr Ikram emailed Mr Mahar the following:

"This is with reference to my outstanding pay for which your goodself [sic] promised to transfer in my bank account by 15th February 2019. On 14th February, 2019, you once again promised to pay on Monday, 18th February 2019. Again, it is unfortunate that you have not paid me as per your promise.

Yesterday on 19th February, 2019 I received call from Ms Rachna, in which she promised to pay me on Thursday, 21st February, 2019.

I request you once again to clear my outstanding pay as I am so much disturbed due to shortage of money in my pocket..."

[40] At 8:46pm on the same day, Mr Mahar responded to Mr Ikram stating that VIA considered his annual and sick leave balances to be zero and asking him to confirm this. Mr Ikram replied at 11:37pm that evening advising that he had not used any sick or annual paid leave since he commenced employment with VIA on 17 July 2017.

[41] On Saturday 23 February 2019, following receipt of payment, Mr Ikram emailed Mr Mahar the following:

"Thank you very much for your transferring my salary into my bank account as on 22nd February, 2019. The net amount you transferred is $4,531/-. As your goodself [sic] is well aware that my weekly gross pay is $1,250/- and after deduction of PAYG withholding tax of $117/-. my net pay is $1,133/-. As per your notice period of one month I should be paid for 4 weeks and 3 days, i.e.

Hope you revise your calculations and transfer rest of the outstanding amount into my bank account. Also you are requested to provide me the salary slip."

[42] On Wednesday 27 February 2019, Mr Mahar replied to Mr Ikram attaching a payslip and further stating:

"Though your employment contract say $60,000 per annum salary still we paid you salary for the month on the basis of $65,000 salary per annum, this you can find out from your payslip provided.

We have paid you on the basis of payslip which is created by our accountant, and he simply created your payslip on the basis of 38hours per week of work.

So when we multiply 38 hours with 4 weeks then it will become 152 hours and we paid you for 152 hours. Your employment contract says 4weeks of notice period, and we paid you for four weeks. Our all the terms and obligations finished with you, after this we cannot pay you anything more..."

[43] Later the same evening, Mr Ikram emailed Mr Mahar clarifying that the termination email on 29 January 2019 stated Mr Ikram would be paid "one month", not four weeks, notice period. Mr Ikram also requested that VIA pay the remaining three days in addition to the four weeks already paid to make up the "one month" as well as to "clear" all Mr Ikram's sick and annual paid leave within one week.

[44] At 7:28pm on Tuesday 5 March 2019, Mr Ikram further emailed Mr Mahar stating:

"This is with reference to my previous correspondence and conversations with you over the phone regarding my outstanding dues, which you have to pay after you terminated me without giving me any reason.

First; you still have to pay me remaining 3 days notice period salary.

Second; you still have to pay me all of my outstanding pay leaves.

Third; you still have to pay me my 4 weeks redundancy entitlement, for which you have not clarified me till to date [sic].

In my last email dated 27th February 2019, I requested you to please clear all of my dues within one week of time. Unfortunately, you have not paid me so far and using delaying tactics.

Therefore, I have not left any other option except to lodge a complain [sic] against you in Fair Work Australia. I am still giving you one day to clear all of my dues by 6th March, 2019 positively."

[45] Mr Ikram said he sent the email on 5 March 2019 to seek a reason for his termination because he wanted to know whether it was on the basis of redundancy or for no reason and because he had still yet to receive payment for his paid leave.

[46] Mr Mahar responded the same evening at 8:00pm, advising that the notice period pay had been paid out in accordance with clause 13.0 of Mr Ikram's employment contract and that VIA had no further liability to him.

[47] The Application was lodged at 9:57pm on 5 March 2019.

[48] Mr Ikram claims it was also both after 23 or 24 February 2019 and 1 March 2019 that he realised Mr Mahar had terminated him because of a past "grudge". He says this grudge is the result of previous work he performed as an agent to another organisation where Mr Mahar was a manager. He says that at this time, he and Mr Mahar had a dispute regarding the payment of commission. Mr Ikram accused Mr Mahar of being notorious for not paying salaries and other entitlements to staff members. He said this is why he contacted Mr Mahar on multiple occasions following his dismissal to enquire about his payment in lieu of notice, as well as the reason for his termination. Mr Ikram said that Mr Mahar used delaying tactics in response to these phone calls, by telling him he would be advised once Mr Mahar had consulted with VIA management. Mr Ikram also claimed Mr Mahar had not paid him for accrued leave and superannuation.

[49] Mr Mahar rejected the suggestion that he held a grudge against Mr Ikram. He said he had never previously worked with Mr Ikram and nor had Mr Ikram acted as an agent for him. Mr Mahar said Mr Ikram had been the agent for a company at which he had previously worked as Operations Manager, but they had no relationship at that time.

[50] The email correspondence detailed in paragraphs [39] to [46] confirms Mr Ikram's evidence that he did not realise he could make an application for unfair dismissal before 28 February 2019 or 1 March 2019 and that he was, up until that time, focussed on obtaining his purported entitlements for notice and outstanding leave. The email correspondence also confirms that Mr Ikram did not flag making an unfair dismissal application with VIA before 5 March 2019 and it does not reveal Mr Ikram either requesting a reason for his termination or making a claim for a redundancy payment before 5 March 2019.

[51] While Mr Ikram said he asked for both his pay and the reason for his termination in telephone conversations, this evidence is directly challenged by Mr Mahar, who said that at no stage prior to 5 March 2019 did Mr Ikram raise an issue about VIA not providing a reason for his dismissal, either through email correspondence or during telephone conversations.

[52] The lack of any request for the reason for the termination of Mr Ikram's employment in the email correspondence prior to 5 March 2019, together with Mr Ikram's evidence that he did not realise he could make an application for unfair dismissal before 28 February 2019 or 1 March 2019, tends me to the view that he did not raise a question regarding the reason for his termination in conversations with Mr Mahar during the period from 29 January 2019 to 5 March 2019.

[53] Further, I do not accept Mr Ikram's proposition that VIA deliberately adopted delaying tactics to ensure he would not make the Application within the required 21 day time period, be this due to a grudge held by Mr Mahar against Mr Ikram or so it could avoid having to defend an unfair dismissal application. I accept Mr Mahar's evidence about his inability to access the MYOB payroll system, which delayed the payment until 22 February 2019, and I also accept Mr Mahar's evidence that he had no knowledge of unfair dismissal laws and the 21 day time period until after VIA had received the Application on 12 March 2019. Having rejected the proposition that a grudge held by Mr Mahar against Mr Ikram led to the adoption of delaying tactics by VIA, I consider the question of whether such a grudge lay behind the decision to terminate Mr Ikram's employment is ultimately one going to the merits of the Application.

[54] I am not persuaded that Mr Ikram's pursuit of his payments upon termination contributed to his delay in lodging the Application. Mr Ikram's evidence that it was not before 28 February 2019 or 1 March 2019 that he was aware he could make an unfair dismissal application and I am satisfied that Mr Ikram's primary focus until at least 23 or 24 February 2019 was the pursuit of his payment in lieu of notice, which was at least partially made on 22 February 2019. I have also had regard to Mr Ikram's evidence that it was after 1 March 2019 that he decided "to go to the Commission for unfair dismissal." This was 10 days after the 21 time period had expired.

[55] Mr Ikram did not explain why he did not take any substantive action after 1 March 2019 until 5 March 2019, beyond stating he was confused and did not know how he could submit an application when he "was time-barred".

[56] The evidence establishes Mr Ikram initially chose to focus on the payment of his payment in lieu of notice and did not realise he could make an unfair dismissal application before 28 February 2019 or 1 March 2019. Further, it was not until after 1 March 2019 that he decided to make an unfair dismissal application. Neither Mr Ikram's lack of knowledge until then nor his claim of confusion between 1 March 2019 and 5 March 2019 gives rise to an exceptional circumstance. As Mr Ikram himself conceded, ignorance of the 21 day limit does not constitute an exceptional circumstance. Indeed, as was also held in Nulty:

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

[57] The other reasons Mr Ikram gave for the delay was that he was stressed by his termination and then became depressed.

[58] It was held in Giles v Mandurah Aquatic and Recreation Centre that it is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options.[8] Further, it has previously been found that it is common for employees to suffer shock and trauma as a result of dismissal from employment[9] and it was said in Casey v Guardian Community Early Learning Centres:

"...stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay."[10]

[59] While I accept that Mr Ikram may have been stressed following the termination of his employment, I am of the view this state of affairs is not unusual. As to his claim that he was depressed, Mr Ikram made this submission without supporting evidence indicating he had required medical treatment or addressing the impact it had on his capacity to make the Application within the required time period.

[60] As to Mr Ikram's claim he investigated getting another job, I do not regard this as being in any way exceptional. Likewise, I do not regard any claimed confusion between the Fair Work Ombudsman and Fair Work Commission to be exceptional. It is not uncommon, in my experience, for unrepresented parties to be confused by the similar names but differing functions of the Fair Work Ombudsman and Fair Work Commission and with whom they are dealing at any given time and invariably they report dealing with "Fair Work." The Parliament could elect to address this state of affairs but for the determination of the Application, I need not comment further.

[61] Having considered the various reasons Mr Ikram has provided for his delay in making the Application, I am not satisfied that he has provided a credible explanation for the delay in filing it. This factor weighs against a finding of exceptional circumstances and granting Mr Ikram an extension of time.

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

[62] Mr Ikram does not dispute he was notified his employment was terminated with immediate effect on 29 January 2019.

[63] I am satisfied that as Mr Ikram was aware of the dismissal on the day it took effect, he had the full 21 days after the dismissal took effect within which to lodge the Application. This weighs against a finding that there are exceptional circumstances.

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

[64] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[11]

[65] Mr Ikram submitted that after he became aware of his termination, he asked "so many times about my reason for dismissal", but that VIA used "delaying tactics" and "avoided giving me any clear answer". Mr Ikram said he was asking in telephone conversations for his pay and for the reason for his termination. He said that in these conversations he was also challenging the termination and arguing that he should not have been dismissed. This evidence is directly challenged by Mr Mahar, as outlined at [51] above.

[66] Consistent with Mr Mahar's evidence, VIA submitted that Mr Ikram only contacted Mr Mahar after his dismissal to follow up his final pay. It relied upon the email correspondence detailed in paragraphs [39] to [46] to support this contention.

[67] Mr Ikram did not dispute his dismissal during the 21 day period after the date the dismissal took effect. His evidence was that it was not until 28 February 2019 or 1 March 2019, after having looked at the Commission's website, that he realised he could make an unfair dismissal application and became aware of the 21 day time limit.

[68] I am also satisfied that the email correspondence detailed in paragraphs [39] to [46] does not indicate Mr Ikram disputed his dismissal at any point prior to 5 March 2019. While Mr Ikram submitted that he was confused about whether his redundancy was genuine, the email correspondence indicates that he was solely focussed on obtaining his purported outstanding entitlements and that it was only after his requests for further payment were refused, that he lodged the Application.

[69] Having regard to these matters, I am satisfied Mr Ikram failed to dispute the dismissal until 5 March 2019, the day upon which he lodged the Application, and this therefore weighs against a finding that there are exceptional circumstances.

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

[70] Prejudice to the employer will weigh against granting an extension of time.[12] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time."[13]

[71] Mr Ikram submitted that the 14 day delay has not caused VIA to suffer any disadvantage or unfairness.

[72] Mr Ikram submitted that the lateness of his application has in fact caused VIA to be advantaged and that, as a "cunning employer," it has used "delaying tactics" to cause his application to be made outside of the 21 day time limit.

[73] Mr Mahar did not give evidence to establish that the 14 day delay beyond the expiration of the 21 day time period had caused VIA any disadvantage or unfairness.

[74] I am satisfied that there would be no greater prejudice to VIA caused by the Application being dealt with now than there would have been had it been made within the 21 day time period.

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

[75] The Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra-Network Technology Group v Kornicki,[14] stating:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."[15]

[76] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[16] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

[77] Mr Ikram's case on the merits is firstly that his employment was terminated because Mr Mahar had a grudge against him. Secondly, Mr Ikram submitted that no business could operate without business development and that his was not a genuine redundancy. He said the fact that no other employee was made redundant points to his dismissal as being unfair.

[78] VIA submits it was agreed with Mr Javed that Mr Ikram's employment was to be terminated by Mr Javed, with effect on or about the settlement date. VIA also maintains that that there had been a change in the operational requirements of the business due to the change in its ownership and the role of business development manager was no longer required to be performed by anyone. VIA's position was that it could not afford a business development manager and says that it has not hired one since the dismissal of Mr Ikram. VIA submits the termination of Mr Ikram was a case of genuine redundancy and challenges the proposition that Mr Ikram was terminated due to a grudge held against him by Mr Mahar.

[79] VIA also gave notice that it would raise the question with Mr Ikram as to whether he had ever been engaged as a contractor with it and objects to the Application on the basis that it is a small business employer and it complied with the Small Business Fair Dismissal Code.

[80] The reason for Mr Ikram's dismissal involves the resolution of contested issues of fact which I consider would only be able to be determined after a full hearing on the merits, including more fulsome evidence and the cross examination of relevant witnesses. I also apprehend that the arguments and counter arguments relating to whether the dismissal was harsh, unjust or unreasonable would most certainly be further developed.

[81] In these circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

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

[82] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[17]considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[18]

[83] While Mr Ikram said that no other employee of VIA was made redundant upon the sale, neither party made submissions that addressed this criterion so I consider it a neutral consideration in determining whether to grant an extension of time in this application.

[84] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis:

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."[19]

[85] I have considered each of the matters specified in s.394(3) of the Act. Having weighed each and considered them collectively, I am not satisfied that there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

[86] I have not been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I decline to exercise my discretion to extend the time for Mr Ikram to make the Application.

[87] Accordingly, the Application is dismissed and an Order to that effect will be issued with this Decision.

Mr V Caruso for Benleader Pty Ltd T/A Victorian International Academy.

[1] [2011] FWAFB 975; (2011) 203 IR 1.

[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[3] [2016] FWCFB 349.

[5] [2018] FWCFB 901.

[8] [2015] FWC 1881 at [8].

[9] Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

[10] Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare [2014] FWC 4002 at [16].

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[14] Telstra-Network Technology Group v Kornicki (1997) 140 IR 1; Print 3168, 22 July 1997.

[16] Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

[17] [2016] FWCFB 6963.

[19] [2018] FWCFB 901.

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