Abdul Memon v HAQ Traders Pty Ltd
[2024] FWC 2703
•1 OCTOBER 2024
| [2024] FWC 2703 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Abdul Memon
v
HAQ Traders Pty Ltd
(U2024/8835)
| DEPUTY PRESIDENT DEAN | CANBERRA, 1 OCTOBER 2024 |
Application for an unfair dismissal remedy – extension of time not granted – application dismissed.
This decision concerns an application by Mr Abdul Memon (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
The Applicant was employed by HAQ Traders Pty Ltd (Respondent) until he was summarily dismissed on 1 May 2024. His unfair dismissal application was lodged on 30 July 2024.
Section 394(2) of the Act provides 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 application in the present matter was filed some 69 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing on 30 September 2024 to consider whether to extend time. The Applicant appeared his own behalf and Mr M Memon appeared for the Respondent.
Extension of time
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(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);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
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 now consider these matters in the context of this application.
Consideration
Reason for the delay
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. 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.[3]
The Applicant explained that the reason for the delay in making his application was that he intended to resolve the dispute internally without resorting to bringing a claim in the Commission. The Applicant stated that the Director of the Respondent is his uncle with whom he has an ongoing shareholder dispute, and he was cautious about taking external action that might complicate the situation.
He explained that the shareholder dispute was complex and was initially his main concern. However as the matter had not been resolved, he decided to make this application.
While the Applicant’s attempts to resolve the issue directly with the Respondent are comprehensible, these actions are not uncommon and do not constitute an exceptional circumstance for a delay in filing his application. The Applicant made a choice to make the application outside the required timeframe.
I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant was made aware of his dismissal on 1 May 2024 and was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant stated that he had sent an email to the Respondent requesting reasoning and justification for his dismissal but received no response. He also sought assistance from the franchisor and family members to mediate in order to resolve the dispute amicably.
While I accept the Applicant has taken some action to dispute the dismissal, the email in question is primarily directed to ensuring the Applicant’s rights as a shareholder.
I consider this criterion to weigh slightly in favour of extending time.
Prejudice to the employer
I cannot identify any 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.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
There are various allegations made by the Respondent about the Applicant’s conduct, which are denied by the Applicant. The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
On the limited evidence before me, the merits are a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
I am not satisfied that the circumstances in this matter are exceptional, either when considered individually or together. The circumstances must be exceptional for the Commission to extend time.
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 is dismissed.
DEPUTY PRESIDENT
Appearances:
A Memon on his own behalf.
M Memon for HAQ Traders Pty Ltd.
Hearing details:
2024.
By Telephone:
September 30.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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