Abdullah Al-Aqel v Acciona Construction Australia Pty Ltd
[2024] FWC 735
•20 MAY 2024
| [2024] FWC 735 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Abdullah Al-Aqel
v
Acciona Construction Australia Pty Ltd
(C2024/600)
| DEPUTY PRESIDENT HAMPTON | SYDNEY, 20 MAY 2024 |
Application to deal with contraventions involving dismissal - extension of time required for lodgement – whether relevant exceptional circumstances exist justifying an extension of time – some factual elements and considerations supporting relevant finding but on balance exceptional circumstances not found such as to warrant extension – application dismissed.
What this decision is about
This decision concerns an application by Mr Abdullah Al-Aqel (Applicant) to deal with a general protections claim involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act). In particular, whether an extension of time required to enable the application to be heard, should be granted.
The Applicant commenced employment with Acciona Construction Australia Pty Ltd (Acciona or Respondent) on 3 July 2023 as a Project Engineer. This was subject to what was described as a probationary period of 6 months, ending on 2 January 2024.
There were some issues that arose during Mr Al-Aqel’s employment, including concerns about his “late” arrival to work and a speeding incident(s) on 29 September 2023 involving a company car he was driving. No formal disciplinary action was taken about these matters at the time, and the consequences and context for this is in dispute. Although I will also return to this aspect, the evidence reveals that by late October 2023 his immediate management had determined that Mr Al-Aqel should not be employed beyond his probationary period.
Mr Al-Aqel indicated via email to Acciona on 6 November 2023 that he had a serious health condition, and he would need 2 weeks of personal leave. Further, he indicated he had undergone surgery on 3 November 2023 and would be unfit for duties until 17 November 2023. The Applicant subsequently provided a further medical certificate giving him clearance to work from 27 November 2023, and informed the Respondent, in effect, that he would be fit for work after this date. He further advised he would be taking annual leave to fly to Malaysia in early December 2023 (as previously applied for on 14 August 2023).
When Mr Al-Aqel returned to work, representatives of Acciona met with him to discuss his work performance and advised him he was not suitable for ongoing employment “beyond his probationary period”. The cessation of Mr Al-Aqel’s employment with Acciona was communicated in the termination of employment letter dated 27 November 2023. It is common ground that the dismissal was effective on that date. The Respondent’s stated reason[1] included, in effect, that it doubted the ability of Mr Al-Aqel to successfully transition into the role of Project Engineer.
Mr Al-Aqel initially approached the Respondent seeking employment on another project within its business. This was not successful. The Applicant then flew to Malaysia as originally planned to support his family and to attend a wedding.
Upon his return to Australia, Mr Al-Aqel sought legal advice on 19 January 2024, however the firm involved was apparently unable to assist with the matter and provided him with the details of Collaborative Employment Solutions – his present representative. He contacted them that day but did not ultimately meet to provide instructions to lodge the application until 1 February 2024.
The s.365 application in this matter was filed on behalf of Mr Al-Aqel in the Fair Work Commission (Commission) later on 1 February 2024.
Section 366(1) of the Act states that an application to deal with a dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). Adopting 27 November 2023 as the reference date for the dismissal, the period of 21 days in this case ended on 18 December 2023.[2] The application was therefore made 46 days after the 21-day time limit. The Applicant requests the Commission grant a further period for the application to be made under s.366(2).
Section 366(2) of the Act allows the Commission to extend the time period within which an application to deal with contraventions involving dismissal can be made where it is satisfied that there are exceptional circumstances.
The Commission conducted a MS Teams Video Hearing to enable the extension of time matter to be determined. Both parties were represented, permission having been granted under s.596 of the Act. Mr Al-Aqel was represented by Ms McRae and later Mr Nippress of Collaborative Employment Solutions. Ms McRae was also responsible for preparing and lodging Mr Al-Aqel’s application. The Respondent was represented by Mr Fleeton of K & L Gates. I observe that as a result of unanticipated personal circumstances impacting upon Ms McRae, an adjournment was required at short notice at the conclusion of the Applicant’s evidence. Mr Nippress, who had apparently been observing the proceedings, then took carriage of the matter on her behalf including for the resumed proceedings.
During the period between the proceedings, both parties made applications for the production of certain material. Further, in the lead up to the resumed hearing, the Applicant sought permission to lead some medical evidence concerning the Applicant’s mental health for the first time. I observe that there was already direct and relevant medical evidence about the Applicant’s diagnosis and treatment and various medical certificates before the Commission. I will return to this aspect shortly.
In providing the above overview of the context and in the findings that follow, I have chosen not to disclose the precise diagnosis and treatment involving the Applicant for privacy reasons. I have however taken into account the very serious and personal nature of such in determining this matter.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations, I have determined that there are some factual elements of this matter and considerations supporting the existence of exceptional circumstances; however, the balance of considerations does not support a finding of exceptional circumstances which would warrant the granting of the required extension of time. The considerations leading to, and consequences of that finding, are outlined below.
Cases presented by the parties
2.1 Mr Al-Aqel
Mr Al-Aqel’s substantive claim is that he has been adversely terminated for the protected reason of discrimination including for a temporary absence due to illness or injury.
In terms of the present matter, principally, the request for an extension of time is based upon the contention that the Applicant was delayed in making the application due to his serious health diagnosis, the associated surgery and follow up appointments. Furthermore, the Applicant flew overseas in early December 2023 to visit his mother and siblings, who are refugees with serious health concerns, and to attend a wedding. On his return to Australia, he was required to attend follow up medical appointments.
Mr Al-Aqel also contends that he did seek legal advice upon his return and the delay between speaking to Collaborative Employment Solutions and giving them instructions was reasonable because he had to assess the likely costs involved.
Mr Al-Aqel further relies on factors including English not being his first or preferred language, cultural differences regarding mental health, and lacking familiarity with the Australian industrial relations system and thereby not knowing which bodies and organisations could offer him assistance as contributing factors to the reasons for delay.
Mr Al-Aqel contends that any one of these factors constitute exceptional circumstances, and that alone and in combination, they warrant an extension of time being granted to enable the application to proceed.
As to merit of the substantive application, Mr Al-Aqel contends that there was no forewarning of the purpose or likely outcome of the meeting on 27 November 2023, that he was not subject to any disciplinary action prior to his diagnosis and personal leave, and that these events were the reasons for his dismissal. This he contends, would be a clear breach of the relevant general protections provisions of the Act.
Mr Al-Aqel provided a witness statement(s)[3] and gave sworn evidence.
2.2 Acciona
The Respondent opposes the extension of time request including on the basis that no credible explanation for the delay in making the application has been provided. This included that there was nothing preventing Mr Al-Aqel from seeking legal advice or filing an application in his time overseas and that he also subsequently delayed seeking advice upon his return to Australia. Further, Acciona contests some of the factual basis and the import of the claimed exceptional circumstances.
Acciona argues there was no action taken by the Applicant to dispute the dismissal. Acciona further allege that the application has no prospect of success and does not fit within the Commission’s jurisdiction for a general protections claim. This is principally based on the contention that the decision to terminate Mr Al-Aqel was made in October 2023, on the basis of performance issues, and prior to the company becoming aware of his health diagnosis and his associated leave.
The Respondent argues the Applicant was capable of engaging in a range of activities following his dismissal including correspondence with it about other potential employment opportunities within the company, attending follow up appointments and flying overseas. In relation to seeking alternative employment with Acciona, the Respondent argues that if the Applicant genuinely believed he was discriminated against due to his health diagnosis, it would be unusual for him to seek to be re-employed by the organisation he alleged discriminated against him in the first place.
The Respondent alleges the Applicant ought to be aware he would need to act promptly if he wanted to challenge his dismissal given his upcoming absence from Australia. Instead, he pursued alternative employment with Acciona and did not seek legal advice or lodge an application whilst overseas.
In relation to the balance of the delay, the Respondent argues that the Applicant waited 13 days to engage a representative and instruct them to institute a proceeding. They further assert that the Applicant “feeling worried about paying his representative” does not give rise to a finding of exceptional circumstances for this aspect of the delay.
The Respondent provided witness statements and led evidence from the following of its employees:
· Ms Ryanna D Mello, Human Resources Advisor;[4]
· Mr George Panagopoulos, Project Director, Eyre Peninsula Desalination Plant Project – who Mr Al-Aqel originally reported to;[5]
· Mr Benjamin Hayes, Construction Manager – who was Mr Al-Aqel’s manager at the time of his dismissal;[6] and
· Mr Ben Lody, Talent Acquisition Advisor – who was approached by Mr Al-Aqel for further employment with the Respondent following the dismissal.[7]
General observations and findings on the evidence
Mr Al-Aqel provided a witness statement and gave sworn evidence at the hearing. Although his evidence was generally credible, I did not find his explanation about the impact of being overseas to be convincing, at least to the extent that he contends he was unable to research or pursue his rights to dispute the dismissal during that time. Further, some of his evidence about the basis of his approach seeking work with the Respondent on another project immediately after his dismissal, was also problematic.
I generally accept Mr Al-Aqel’s evidence about the physical and mental impact of his medical diagnosis and surgery, particularly prior to the subsequent medical clearance and confirmation that the issue was confined. This also, not unsurprisingly, impacted upon his immediate priorities. I also accept that these events would probably have had a longer-term impact on him, although this must be weighed against the fact that he had a full medical clearance to return to work prior to his dismissal and what he was actually capable of, and did do, concerning employment and related matters, in the lead up to the filing of the application.
As to Mr Al-Aqel’s general circumstances, Mr Al-Aqel was born in Saudi Arabia and more recently lived in Yemen. Due to conflict in Yemen, he last visited that country in 2009 and has spent 7 years between India, Malaysia and Taiwan for education. He migrated to Australia in 2016 on a skilled migration visa.[8] The earlier studies included the completion of a Bachelor of Engineering (Hons) Civil Engineering from the University of Technology Petronas in Malaysia. I find that although English is not his first or preferred language, he has good written and oral communication skills in English and was able to successfully operate as an Engineer in Australia without any apparent difficulties. I also found that he was analytical and intelligent and although he may have had no prior understanding of the Australian workplace legal system, he was more than capable of making sufficient enquiries to obtain some general information and developing sufficient understanding to locate sources of proper advice and representation about his dismissal if he had attempted to do so. Indeed, this is what happened when he commenced those enquiries.
Ms D Mello was not involved in making the decision to dismiss Mr Al-Aqel or with any “investigation” of the events now relied upon by Acciona. However, she was able to confirm, at least in general terms, when she was instructed to commence the process to dismiss the Applicant. Ms D Mello was also able to confirm records of the Applicant’s annual leave requests and the GPS tracking records of the company-issued car the Applicant was driving which recorded two instances of travelling well over the relevant speed limit, and that she had been advised of what she understood were performance concerns with the Applicant’s work. Given the very indirect (hearsay) nature of that evidence, I place no reliance upon such to demonstrate the facts involved, beyond that these were the issues known and stated to her as the basis of the dismissal. Ms D Mello was also able to give evidence as to her version of what occurred at the meeting during which the dismissal took place. Her defence of the fairness of the process adopted by Acciona in dismissing the Applicant was less than convincing.
Mr Panagopoulos’s evidence was sound and I accept it. This included that he was personally unaware of the Applicant’s health and family issues and that he had some concerns in relation to the Applicant’s punctuality and communication during his time managing the Applicant. Mr Panagopoulos correctly conceded that he was not involved in the Applicant’s dismissal and that no disciplinary action was taken in relation to his apparent performance concerns.
I found that the evidence of Mr Hayes was generally convincing. This included that he did hold concerns associated with the Applicant’s timeliness of attendance at work on occasions and that he had informally raised these with him. Further, his evidence about the timing of the approach to commence steps to dismiss the Applicant was consistent and I find to be reliable. However, I have reservations about his explanation of the discussion on 16 October 2023 with the Applicant about the (admitted) speeding incidents.[9] The other management representative who was present at that meeting indicated that he may well have also sped when overtaking trucks. This would be reasonably understood by the Applicant as undermining the message that this conduct was as serious as now contended by the Respondent. Mr Hayes’s explanation to the contrary was not convincing. I also observe that Mr Hayes was unable to satisfactorily explain why he was seeking confirmation of the Applicant’s future leave arrangements when a decision to dismiss the Applicant was already allegedly made.
Mr Lody’s evidence was confined to the post dismissal discussions with the Applicant about the Applicant’s attempts to secure further work with the Respondent. I accept the thrust of that evidence with two reservations. I do not find that the Applicant stated that he had been made redundant. However, I accept that Mr Al-Aqel emphasised that there were no work opportunities available in South Australia and did not mention to Mr Lody that he had been dismissed for the stated reason given in the termination letter. Further, elements of his evidence about advising the Applicant that he was not to be reemployed was problematic. It is unlikely that any such discussion occurred on 6 December 2023 during a phone call he had made to the Applicant as he originally stated.
As earlier noted, the Applicant’s representative made an application for leave to rely upon some further and new medical evidence in the lead up to the resumed hearing. This included the prospect that the Applicant’s treating doctor would be called to give evidence to support Mr Al-Aqel in light of a letter obtained from that Doctor in the days immediately before making that request. I declined to permit that course of action and indicated that I would provide reasons in this Decision.
I declined to grant permission because:
· Mr Al-Aqel had previously decided[10] not to provide or rely upon medical evidence of that kind and the preparation of the Respondent’s case and the evidence of the Applicant, including the cross-examination, had already been finalised without that new evidence;
· The Respondent had relied upon the absence of medical evidence of that kind in its materials filed well prior to the original hearing and the Applicant could have sought to provide such evidence at that time and well prior to the point that the request to lead the further evidence was made;
· The Applicant’s explanation for changing his position on the evidence late in the arbitration process (sensitively associated with mental health issues – which I accept on face value) was not of itself satisfactory given the above and the fact that it only arose as a matter of chance due to a medical appointment unrelated to this matter;
· Granting the request would have, as a matter of natural justice, required the Commission to provide an opportunity to the Respondent to obtain its own medical advice (or at least to obtain instructions about the matter) and would have further delayed the already prolonged hearing; and
· I have already accepted the likely medical (physical and mental health) impact of the diagnosis and the treatment, including that this is relevant to the explanation for aspects of the delay and the existence of exceptional circumstances.
The events relevant to the explanation for the delay in lodging the application
In making these findings, it is helpful to understand the immediate context.
On 23 October 2023, Mr Al-Aqel was scheduled to have a 3-month informal review/check in with management which was cancelled and subsequently scheduled for 27 October. In the context of the events outlined below, this was further rescheduled to 1 November 2023.
On 27 October 2023, Mr Al-Aqel had an appointment with his General Practitioner (GP). On 30 October 2023, he attended a related medical appointment.
On 1 November 2023, Mr Al-Aqel met with his GP for a follow up appointment.
Mr Al-Aqel cancelled a meeting with Mr Panagopoulos and Mr Hayes on Wednesday 1 November 2023 advising them he was facing a health emergency.
On or around the 2 November 2023, Mr Al-Aqel advised Mr Hayes of his medical condition, including its nature and seriousness, after taking a personal leave day on 1 November 2023.
Mr Al-Aqel was certified as being unfit for work from Wednesday 1 November until Friday 17 November 2023, and a medical certificate dated 3 November 2023 was provided to support this.
On 3 November 2023, Mr Al-Aqel was admitted to hospital for surgery and discharged on the same day.
On 6 November 2023, Mr Al-Aqel emailed Mr Panagopoulos and three others at Acciona advising he had undergone surgery and would need to take a minimum of two weeks to recover.
On 7 November 2023, Mr Al-Aqel emailed Mr Panagopoulos querying why his work location and manager had apparently changed in the human resource management system.
On 17 November 2023, Mr Al-Aqel advised he was still recovering and would not be fit for work until 24 November 2023.
On Monday 20 November, a further medical certificate[11] dated 16 November 2023 was provided by the Applicant certifying him as being unfit for work from 16 November to 26 November 2023. That certificate also confirmed that Mr Al-Aqel was fit to return to work as from Monday 27 November 2023. In response to an earlier request from Mr Hayes about his leave intentions, Mr Al-Aqel advised that he had booked a flight to Malaysia on the first day of his previously approved leave on 7 December 2023.
Mr Al-Aqel emailed Acciona on 24 November 2023 and advised his recovery was progressing well and he could return to work on 27 November 2023. He further indicated he would need to attend follow up appointments booked on 28 November 2023 and 4 December 2023 and sought a meeting to facilitate a smooth transition back into work. Mr Hayes acknowledged this email and asked him to meet at the office at 10 am for a catch up.
Mr Al-Aqel was dismissed on 27 November 2023. This was confirmed in the letter of dismissal provided to the Applicant during that meeting which stated as follows:
“Termination of Employment during Probation Period
Your probation period with us at Acciona is due to end on 2 January 2024. During our meeting, it was explained in detail the reasons why we felt that your ability to successfully transition into the role of Project Engineer was not going to be successful. Therefore we regret to inform you that your employment with Acciona will cease effective immediately.
You will be paid 1 weeks' notice period and the payout of your entitlements as per your employment contract.”[12]
I find that during the dismissal meeting, Mr Al-Aqel was also advised that there was no alternative roles for him in the company. I also find that he expressed surprise and some distress at the news of the termination.
In general terms, Mr Al-Aqel first sought advice about contesting his dismissal on 19 January 2023. The Applicant subsequently obtained further advice on 1 February 2024 where he immediately gave instructions that a general protections claim be lodged at the earliest possible opportunity. The Application was lodged later on 1 February 2024.
The 21-day period concluded on 18 December 2023. It is the period following that date which represents the delay in making the application. It is however convenient to consider the full period between the dismissal and the lodgement of the application to set the entire context.
First period - 27 November 2023 to 6 December 2023
Mr Al-Aqel underwent surgery on 3 November 2023 and was in recovery for 4 weeks post-surgery. The Applicant asserts he was anxious, worried, and depressed during this time which prevented him from seeking advice or making an application with the Commission. I generally accept that this was so.
Mr Al-Aqel contacted Ms D Mello on 27 November and Mr Lody on 27 and 30 November 2023 and in early December 2023 where he sought or followed up on other potential work opportunities with Acciona. During this period, Mr Al-Aqel also attended medical appointments on both 28 November and 4 December 2023.
In assessing Mr Al-Aqel’s explanation, I accept that during this period he continued to be anxious and worried about his health and that this impacted upon his capacity to advance his interests. However, this must be balanced against the fact that he was by that time clearly able to contact and deal with the Respondent about future work opportunities and had been cleared to return fit to work from 27 November 2023.
I observe that, thankfully, Mr Al-Aqel was cleared from his medical diagnosis on 4 December 2023, subject to ongoing assessment.
Mr Al-Aqel contended that if he were to remain employed with the Respondent, he would not have had to challenge the dismissal. This is reasonable as far as it goes; however, it is also tolerably clear that by the time he left for Malaysia, he was not going to be reemployed by the Respondent. Further, there is no reliable evidence that he was unable to take steps to enquire about or contest his dismissal from this point and such a proposition would be inconsistent with his conduct of other matters more generally.
Second Period – 7 December 2023 to 16 January 2024
I observe that the actual delay in lodging the application commenced during this period.
On 6 December 2023,[13] Mr Al-Aqel left for Malaysia to care for his family. He also attended a wedding during this period prior to returning to Australia on 16 January 2024. Mr Al-Aqel had applied for and been granted annual leave for this trip in August 2023, at least to the extent that it contemplated the period between 7 and 21 December 2023.
I accept that there were particular circumstances operating at this time. These include those applying to his refugee family who are in a perilous state and have genuine health issues. This explains that Mr Al-Aqel was rightly concerned about their welfare and that a trip to support them, as previously arranged, was not inappropriate. I also accept that he continued to be impacted at least to some degree by the shock and consequences of his earlier diagnosis and that he was not using an Australian phone number whilst overseas. This latter aspect may have impacted his capacity to actually apply for work due to the desirability of having an Australian contact number for work applications; however, this is not a constraint impacting upon conduct more relevant to this matter.
Indeed, Mr Al-Aqel was clearly capable of and did search for job opportunities online whilst in Malaysia and there is no reliable evidence that he was unable, because of the circumstances outlined above or otherwise, to make enquiries about contesting his dismissal. He did not make any attempts to enquire about, or take steps to contest, his dismissal during this period.
Accordingly, whilst there is some reasonable explanation for his conduct at this time, the explanation for the delay (which actually commenced on 19 December 2023 for present purposes) is not a convincing or reasonable explanation when assessed in its full context.
Third Period – 16 January 2024 to 1 February 2024
On 19 January 2024, the Applicant sought legal advice from a firm practicing in employment law; however, it was apparently unable to assist him. However, he was referred to Collaborative Employment Solutions and contacted them immediately. Collaborative Employment Solutions subsequently provided some initial advice, which is not in evidence,[14] and according to the Applicant, indicated that it required a deposit to be paid to commence acting.
Mr Al-Aqel took some days after receiving that advice to engage Collaborative Employment Solutions to act, and met with them on 1 February 2024. Instructions were given at this time to lodge the present application and Collaborative Employment Solutions acted immediately to do so.
Although I accept that Mr Al-Aqel may have wished to assess, in effect, whether the investment of the fees (including at least the deposit) was worthwhile, this is not unusual and the absence of any apparent urgency does not provide a reasonable explanation for this aspect of the further delay. The legacy of his medical issues, including some appointments are relevant, but not a significant explanation for this further delay given all of the circumstances operating at this time and my earlier findings.
Accordingly, during this period, Mr Al-Aqel did take steps to make enquiries about his rights and ultimately gave instruction to file. However, the further delays having found a potential representative were not reasonable in all the circumstances.
Should an extension of time be granted?
Section 366 of the Act relevantly provides as follows:
“s.366 Time for Application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).(2)The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Section 366(2) of the Act provides the Commission with discretion to extend the time for lodgement beyond the 21-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take into account the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.
Although the statutory discretion in s.366(2) requires the relevant considerations to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters, I have considered the ordinary and natural meaning of “exceptional circumstances” and whether the combination of factors when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented, or very rare but exceptional circumstances are not regularly, routinely or normally encountered.[15] The test of exceptional circumstances also represents a “high hurdle”.[16]
Where “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s.366(2). This will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.[17]
Reason for the delay
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 for the delay. 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 an applicant’s favour; however, all of the circumstances must be considered on their own merits.[18]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[19] The delay in this matter is 46 days and this is the focus of the present consideration.
Further, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[20]
I have earlier made detailed findings bearing upon this consideration.
I have also dealt with and taken into account Mr Al-Aqel’s other circumstances in assessing the reasons for the delay.
The are some reasonable explanations provided for aspects of the delay; however, when all of the circumstances are considered in the context in which they occurred, the overall explanation is not acceptable or reasonable. As a result, I do not consider that they contribute to a finding of relevant exceptional circumstances.
Any action taken by the person to dispute the dismissal
This is, in part, related to the explanation for the delay discussed above.
The material presently before the Commission indicates that the Applicant did not dispute the dismissal, rather he tried to find a new position within the company.
There is no evidence Mr Al-Aqel took any action to dispute the dismissal other than ultimately bringing the present application.
This consideration weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent contends prejudice was caused to it by the significant delay involved.
The Applicant asserts that there was no significant prejudice to the employer given it was “closed during the Christmas shutdown and were unlikely to have actioned the application immediately had it been filed in time.” This is somewhat speculative.
However, the evidence before the Commission touching upon this aspect does not satisfy me that any material prejudice to the Respondent has been caused by the delay. Indeed, I observe that the Respondent was able to run a comprehensive case concerning the merit of the substantive application and there was no evidence that there were operational, or employment, decisions taken as a result of the delayed notice of this matter. Accordingly, this is a marginally positive consideration favouring the application, noting the absence of prejudice to the employer is an insufficient basis by itself to grant an extension of time. [21]
Merits of the application
The merits of the substantive application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[22] Further, the primary consideration is whether the applicant has an arguable case,[23] or as it has previously been stated, it is sufficient for an applicant to establish that the substantive application was not without merit.[24]
The Applicant’s merit case is, simply put, that the dismissal occurred after the medical condition was known and he had taken leave with the prospect that some more leave for medical appointments would be required. This aspect is not seriously in dispute. The second aspect of the Applicant’s merit case is that the dismissal occurred because of these facts. This is very much in dispute, with the Respondent contending that the decision to dismiss was made prior to any of these events and it did not have regard to them.
Given the nature of the substantive application, to be successful the Court[25] would need to be satisfied that the operative reason(s) for dismissal included a proscribed reason.[26] There is no doubt that the Applicant’s medical condition and associated leave would fit this category.[27] The reverse onus of proof[28] would also operate in these circumstances and this is of assistance to the Applicant. The timing of the actual decision to dismiss Mr Al-Aqel would therefore be of some importance in any merit hearing.
The facts relevant to these aspects are in dispute. Despite the narrow nature of the present consideration as part of an extension of time application, both parties directed considerable evidence and time to this aspect.
I observe that the lack of procedural fairness and the absence of earlier warnings about the Applicant’s conduct and work performance may be consistent with these factors not being the real reason for dismissal, as contended by Mr Al-Aqel. However, the evidence reveals that this was more likely to be because of the Respondent’s (regrettable) view that warnings and procedural fairness were not required given that the Applicant was in a “probationary period”. Further, the evidence presently before the Commission strongly indicates that the Respondent was at the very least resolved to terminate the Applicant prior to the conclusion of his probationary period due to “performance issues” and that this decision was made in late October 2023, prior to the relevant events relied upon in this application. As a result, the Respondent has a strong defence to the general protections application, given the nature of those provisions. However, given that the actual dismissal occurred after the relevant events had occurred and were known by the Respondent, the Court may also need to consider whether the decision to proceed with the ultimate dismissal was influenced by the relevant events. This was not actively canvassed during the hearing and a definitive finding of this nature by the Commission is not apposite in an extension of time application for a general protections application.
It is sufficient for present purposes to find that Mr Al-Aqel does not have a strong merit case, but it is not without some merit under the General Protections provisions of the Act.
Given the nature of this consideration, this is a factor weighing marginally in favour of exceptional circumstances.
Fairness as between the person and other persons in a similar position
The history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[29] However, this consideration is (also) concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission. [30]
The Respondent contends this consideration weighs against granting an extension of time and that other persons in similar positions have on many occasions been refused an extension of time.
Amongst other matters, the Applicant relies upon circumstances where an extension of time was provided to a person recovering from a life-threatening illness,[31] someone caring for severely ill family members,[32] and a person under vulnerability due to language and cultural factors.[33] He further contends that an ordinary person dealing with unimaginable stress and difficulty should be granted leniency with the time to file a general protections claim.
Indeed, both parties sought to support their propositions on this and the other considerations by reference to other cases determined by the Commission. Many of these cases had some similar features; however, each case largely turns on its own facts. However, I have had regard to the issue of fairness between persons to the extent that the various decisions engage this consideration.
Accordingly, the application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.366(2) of the Act and weighed them accordingly, I am not satisfied that there are relevant exceptional circumstances warranting the extension of time required in this matter.
Accordingly, I have not granted an extension of time for the making of this application and it has not been made in accordance with the Act.
The substantive application is dismissed.
DEPUTY PRESIDENT
Appearances:
G McRae and later A Nippress of Collaborative Employment Solutions, with permission, for Mr Abdullah Al-Aqel, the Applicant.
D Fleeton of K&L Gates, with permission, for Acciona Construction Australia Pty Ltd, the Respondent.
Hearing details:
2024
27 March
18 April
Via MS Teams video.
[1] Termination letter of 27 November 2023.
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Exhibit A1.
[4] Exhibit R3.
[5] Exhibit R5.
[6] Exhibit R4.
[7] Exhibit R2.
[8] Exhibit A1.
[9] The GPS data for the vehicle being driven by the Applicant recorded that it had travelled at 137 kms/hour and 139 kms/hour on 29 September 2023. This was advised to Mr Hayes on 16 October 2023. The Applicant accepted, in effect, that this had occurred.
[10] Confirmed on behalf of the Applicant in the Directions proceedings concerning this request.
[11] Exhibit R3 – document RDM- 04.
[12] Exhibit R3 – document RDM-06.
[13] A day earlier than originally planned.
[14] I upheld a claim based upon notion of privilege regarding this material.
[15]Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C.
[16] George Georgiou v Transurban Ltd[2022] FWCFB 155 at [17] – although stated in the context of a s.394 unfair dismissal application, this remains relevant given the close nature of the considerations involved.
[17] Ibid.
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[19] Ibid.
[20] Ibid.
[21] Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at [300].
[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].
[23] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[24] Telstra Network Group v Kornicki (1997) 140 IR 1 at [11].
[25] Or the Commission if the parties agreed to a “consent” arbitration of the substantive application – Fair Work Act 2009 (Cth) s.369.
[26] Fair Work Act 2009 (Cth) s.340.
[27] Fair Work Act 2009 (Cth) ss.341, 351, 352.
[28] Fair Work Act 2009 (Cth) s.361.
[29] At least in the context of unfair dismissal matters – see Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[30] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[31] China Southern Airlines Limited v Anesha Mohanan[2015] FWCFB 8260.
[32] Ms Kylie Patricia Walker v EDDCON Pty Ltd[2022] FWC 527.
[33] Maria Paz Mori v Embassy of Peru[2014] FWC 5023.
Printed by authority of the Commonwealth Government Printer
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