Sahar Khasseh v Uncles Charcoal Kebab & Pizza Pty. Ltd [2024] FWC 2848 (14 October 2024)

[2024] FWC 2848

Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Sahar Khasseh (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Uncles Charcoal Kebab & Pizza Pty Limited (Respondent).

• [2] The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).

• [3] I conducted a hearing, by telephone, on 9 October 2024 in relation to the Applicant's request for an extension of time. A Persian interpreter provided great assistance during the hearing interpreting English to Persian and Persian to English.

• [4] The Applicant's dismissal from her employment with the Respondent took effect on 5 August 2024. The Applicant lodged her unfair dismissal application in the Commission on 1 September 2024.

• [5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 26 August 2024. The application was therefore filed six days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

• [6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]

• [12] In her unfair dismissal application, the Applicant gave the following explanation for her application being filed outside the 21 day period provided for in the Act:

"I tried to call Fair Work first, but due to the interpreting issue, the waiting time to connect with the officer, and the limited time for interpreting, I couldn't explain my situation completely. On the other hand fair work officer told me that he had opened a case file and I was waiting for that."

• [13] The Applicant also provided the following submission to support her request for an extension of time:

New to Australia and unfamiliar with the laws: I recently arrived in Australia and am not yet fully familiar with the local laws and regulations, including the specific timeframes for lodging an unfair dismissal application. This was my first job in Australia.

Lack of employment contract: Despite my requests, my employer refused to provide me with an employment contract. As a result, I was not aware of the specific laws and regulations that I should have been informed about when signing a contract.

Contact with Fair Work using an interpreter: On 14 August 2024, I contacted Fair Work with the assistance of a simultaneous interpreter. Based on the outcome of that call, I was under the impression that Fair Work would contact me directly regarding my case. You can verify the details of this call with Fair Work.

Emotional and psychological distress: The unfair dismissal and the failure to receive all my legal entitlements have caused significant emotional and psychological distress. This is further impacted my ability to promptly file the application within the required timeframe.

I hope Commission will consider these exceptional circumstances and grant an extension of time for my application."

• [14] During the hearing on 10 October 2024, the Applicant gave evidence to the following effect:

• The Applicant is not sure whether she spoke with somebody from the Commission or the Fair Work Ombudsman on 14 August 2024. The Applicant called an interpreting service, which connected her to "Fair Work".

• The Applicant called "Fair Work" on 14 August 2024 because she was sacked from her job without any notice, she had no written contract for her work, she was not given any payslips, and her superannuation and tax was not paid correctly. The Applicant wanted to seek advice from "Fair Work" as to what to do. "Fair Work" advised the Applicant to chase up her superannuation with her superannuation fund, follow up her unpaid tax with the Australian Taxation Office (ATO), and follow up with "Fair Work" her unpaid notice. The Applicant was not told about any time limits by "Fair Work".

• As to the "impression" the Applicant had that "Fair Work" would contact her after 14 August 2024, the Applicant explained that she spoke to a number of people from "Fair Work" on 14 August 2024 and each time the conversation was cut off. The Applicant thought that the last person to whom she spoke from "Fair Work" on 14 August 2024 would call her back. They did not do so.

• About two days before the Applicant lodged her unfair dismissal application in the Commission, the Applicant sought advice from her friends as to what she should do in relation to her concerns regarding her employment with the Respondent. Her friends advised her to chase up her concerns through the Commission. The Applicant then, through the assistance of a friend, prepared and lodged her unfair dismissal application in the Commission.

• The reason the Applicant approached "Fair Work" was to get paid for the hours she worked and be paid her employee entitlements.

• [15] Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. The Applicant recently migrated to Australia and did not know how to follow up her concerns about her employment. That is understandable. However, within nine days of her dismissal on 5 August 2024, the Applicant called and, through the assistance of an interpreter, spoke to a representative from either the Fair Work Ombudsman or the Commission. The issues raised by the Applicant in those calls related to alleged underpayment of employee entitlements, not unfair dismissal. The information given to the Applicant in those calls was largely correct. The Applicant was not given misleading or incorrect information about commencing unfair dismissal proceedings or the time within which such proceedings must be commenced. Those issues did not arise, no doubt because the concerns raised by the Applicant focused on her unpaid employee entitlements. Further, the Applicant was able to find out the correct process for lodging an unfair dismissal application by asking her friends. The Applicant could also have obtained this information from the Commission website because the information on that site is available in 28 languages, including Persian. Finally, I do not consider that the emotional and psychological distress suffered by the Applicant after her dismissal prevented, or significantly impaired, the Applicant from lodging an unfair dismissal application within 21 days of her dismissal. The Applicant was able to take the initiative to contact "Fair Work" on 14 August 2024 and ask relevant questions about her alleged unpaid employee entitlements. No medical evidence was tendered to support or substantiate the extent of emotional and psychological distress suffered by the Applicant.

• [16] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 1 September 2024 weighs against the Applicant's contention that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [17] The Applicant was aware of her alleged dismissal on the day it took effect and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

• [18] The Applicant took some action to dispute her dismissal by contacting "Fair Work" on 14 August 2024. This provides some weight to the Applicant's argument that there are exceptional circumstances.

• [19] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [20] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

• [21] The Applicant included the following response to questions 2.1 and 3.1 in her unfair dismissal application:

"2.1 What happened and why does the Applicant think it is unfair?

I failed to receive contracts and pay slips despite asking several times. My superannuation wasn't paid, and failure to pay the amount deducted from my salary for ATO. I also didn't get paid for my unused annual leave and my notice period.

3.1 What outcome does the Applicant want from this case?

• - Superannuation
• - Shortage paid that deducted for tax and unpaid to ATO
• - My annual leaves
• - one-week payment for the notice period"

• [22] The Respondent has not filed a Form F3 Response to the Applicant's unfair dismissal application. However, the Respondent did send the Commission an email on 13 September 20204 denying that the Applicant's dismissal was unfair or that she was not paid her employee entitlements.

• [23] It is apparent from the Applicant's unfair dismissal application that she is primarily aggrieved by what she considers to be a failure by the Respondent to pay her correct entitlements as an employee of the Respondent. In unfair dismissal proceedings the Commission does not have the power to determine any claim for the underpayment of employee entitlements, such as superannuation, taxation, annual leave, or payment in lieu of notice. Claims of this kind must be pursued through the ATO or an appropriate court. These matters suggest that the merits of the Applicant's unfair dismissal application may be weak. But there is some suggestion in the material before the Commission that there are also contentious matters between the parties in relation to the fairness of the reasons for the Respondent's decision to terminate the Applicant's employment. Having regard to all the circumstances, I consider the merits of the Applicant's unfair dismissal application to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [25] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [26] Notwithstanding that I have sympathy for the Applicant, taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute her dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [27] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

• [28] The dismissal of the Applicant's unfair dismissal application does not prevent the Applicant from taking action to pursue any of the outcomes sought by the Applicant in her unfair dismissal application, including an alleged underpayment of superannuation, shortage of pay, taxation, unpaid annual leave, or a payment in lieu of notice. The Applicant may elect to seek the assistance of the Fair Work Ombudsman and the ATO to address these matters.

Mr N. Yazdanpanah, director, appeared for the Respondent.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] 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]

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

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