Abdul Noureddine v AllianceCorp Investments Pty Ltd

[2022] FWC 681

[2022] FWC 681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Abdul Noureddine
v

AllianceCorp Investments Pty Ltd

(U2022/2771)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MARCH 2022

Application for an unfair dismissal remedy – application filed 3 days out of time –circumstances not exceptional – extension not granted – application dismissed.

1. On 6 March 2022, Mr Abdul Noureddine made an application to the Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the unfair dismissal application is AllianceCorp Investments Pty Ltd (AllianceCorp). AllianceCorp objected to the application on the basis that the application was lodged out of time.

1. There is no dispute that on 10 February 2022, Mr Noureddine was informed both verbally and in writing that his employment would be terminated with immediate effect. 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). Mr Noureddine therefore had until midnight on 3 March 2022 to make an unfair dismissal application. The Form F2 – Unfair Dismissal Application dated 3 March 2022 (Form F2) was filed with the Commission using the online lodgement service (OLS) at 7:35pm on 6 March 2022. As such, Mr Noureddine’s unfair dismissal application was made three days out of time.

1. The Commission file was therefore allocated to me for the purposes of determining whether an extension of time for the making of Mr Noureddine’s application should be granted. Mr Noureddine filed material pursuant to the Directions I made on 8 March 2022. While AllianceCorp had an opportunity to file any material in reply in response, it did not do so. I conducted a Determinative Conference on 28 March 2022 at which Mr Noureddine gave evidence and made submissions. I granted AllianceCorp permission to be represented by a paid agent, Mr Sean Johnson of Melbourne HR, having regard to the consideration in s.596(2)(b) of the Act. Mr Noureddine made no objection to the grant of permission.

Legislation

1. 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]

1. 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.

1. 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 Mr Noureddine’s application for an extension of time.

Reason for the delay – s.394(3)(a)

1. 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 the circumstances must be considered.[3]

1. 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, which in this case ended at midnight on 3 March 2022. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for (in this case) the three-day delay, or any part of that delay, beyond the 21-day period.[4]

1. Mr Noureddine submits that his mental health suffered as a result of his dismissal. He said that he fell into a depressive state and found day to day activities and tasks difficult to perform, which included completing his unfair dismissal application form. Mr Noureddine also says he experienced anxiety following his dismissal and as such, he hesitated to file his application as he was concerned that his mental health would further deteriorate. Mr Noureddine said he was nonetheless encouraged to pursue an unfair dismissal application by a friend. He said he commenced some research about unfair dismissal claims on the internet approximately 3-4 days prior to the expiration of the 21-day period and came across the Commission’s website while doing so. Mr Noureddine said he has consulted a psychologist, but he had not obtained a report in time for the determinative conference. He also said he has yet to have had a mental health plan prepared and is still waiting for a follow-up appointment. I have noted Mr Noureddine’s evidence that during the course of his employment he had been feeling uneasy and had reported his anxiety to his operations manager.

1. I accept Mr Noureddine may have experienced some stress and a negative reaction as a result of learning of his dismissal, but this is not of itself unusual. Stress and anxiety from a dismissal are not unusual and nor are shock and a degree of trauma uncommon reactions. The material before me is not sufficient to persuade me that Mr Noureddine was so debilitated and unable to function that he could not have completed and filed a Form F2 within time. Significantly, Mr Noureddine’s evidence was that he initially thought he had 30 days to make an unfair dismissal application and he then subsequently realised he was mistaken. He said he only discovered the 21-day time period on the day after it had expired. As outlined above, Mr Noureddine then filed his unfair dismissal application two days later, on 6 March 2022.

1. While Mr Noureddine may not have had prior experience with unfair dismissal laws and processes and dealing with the Commission, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[5] and unfamiliarity is not exceptional.

1. Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 3-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the 3-day delay. The absence of an acceptable or reasonable explanation weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

1. It is not in dispute, and I am satisfied that Mr Noureddine was aware he was dismissed with immediate effect on 10 February 2022 and therefore had the benefit of the full period of 21 days to lodge his unfair dismissal application. This is therefore a neutral consideration.

Action taken to dispute the dismissal – s.394(3)(c)

1. Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[6] While Mr Noureddine submits that the Respondent did not provide him with an opportunity to dispute his dismissal during the final meeting on 10 February 2022, he did not take any action to dispute his dismissal until he completed the process of filing this application. This is therefore a neutral consideration. 

Prejudice to the employer – s.394(3)(d)

1. I cannot identify any prejudice to AllianceCorp or any greater prejudice that would accrue to it caused by the application being dealt with now than there would have been had it been made within the 21-day time period. 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 an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.

Merits of the application – s.394(3)(e)

1. I am required to take into account the merits of the application in considering whether to extend time, but 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. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

1. AllianceCorp submits there was a valid reason for dismissal relating to Mr Noureddine’s performance and conduct, in that he breached company policy and process by booking invalid appointments that were not compliant with the regulatory framework. AllianceCorp contends Mr Noureddine breached the trust and confidence entrusted in him by neglecting company processes and procedures and demonstrated a lack of commitment to the primary and core components of his role, illustrating a lack of respect to his colleagues, management, and the overall business. Mr Noureddine vehemently denies the allegations and argues that AllianceCorp’s booking procedures are in breach of the Human Rights and Equal Opportunity Commission Regulations 1989 and Equal Opportunity Act 2010.

1. Ms Noureddine also argues that AllianceCorp did not notify him of the performance related issues that ultimately led to his dismissal and did not provide him with an opportunity to remedy these performance-related issues, either through the provision of additional training or the adoption of a performance improvement plan. As regards these matters, AllianceCorp’s position is that it held a meeting with Mr Noureddine on 18 November 2021 and issued Mr Noureddine with a first and final written warning letter (Warning Letter) outlining its concerns with his performance. AllianceCorp says the warning letter was issued on 19 November 2019, three months prior to Mr Noureddine’s dismissal, and as such, Mr Noureddine was given an opportunity to rectify his performance. Mr Noureddine maintains that his dismissal was unfair because the Warning Letter outlined performance issues that were not cited as being the performance issues that constituted the reason for his dismissal. He also says he was the recipient of a “Most Improved Award” in December 2021, although AllianceCorp asserts such awards were given to multiple members of staff and were aimed to be encouragement awards rather than a reflection of outstanding performance.

1. Having reviewed the material and heard from the parties, I consider the merits of Mr Noureddine’s application turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Based on the limited material before me, I am not able to make any firm assessment of the merits. I do not consider the merits to tell for or against an extension of time. This is a neutral consideration.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

1. 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. While Mr Noureddine raised some matters going to the merits his application, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This is a neutral consideration.

Conclusion

1. 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) of the Act 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.

1. Having regard to and having weighed each of the matters I am required to consider under s.394(3), and then having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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, Mr Noureddine’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A Noureddine on his own behalf.
Mr S Johnson of Melbourne HR for AllianceCorp Investments Pty Ltd.

Hearing details:

2022.
Melbourne (via Microsoft Teams):

March 28.

[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].

[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] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

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