Abdurahman Mohamed Ali v Jamil Jimee
[2018] FWC 5501
•3 SEPTEMBER 2018
| [2018] FWC 5501 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Abdurahman Mohamed Ali
v
Jamil Jimee; Jamil S.J.S. Pty Ltd
(C2018/3032)
COMMISSIONER LEE | MELBOURNE, 3 SEPTEMBER 2018 |
Application to deal with contraventions involving dismissal - extension of time.
Introduction
[1] Mr Abdurahman Mohamed Ali (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The application was lodged on 1 June 2018 and concerns an allegation that adverse action was taken by Mr Jamil Jimee, Jamil S.J.S. Pty Ltd (the Respondent), namely the dismissal of the Applicant on 9 May 2018, in contravention of s.340 of the Act. The application was lodged on 1 June 2018 and is therefore two days out of time. As the application is made outside the prescribed period in s.366(1)(a) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.
[2] The Commission sent correspondence to Mr Jamil Jimee of the Respondent by post in relation to this matter on 6 June 2018. The correspondence advised that an application had been lodged and the application was lodged outside of the legislated timeframe and included a copy of the general protections involving a dismissal application (Form F8), employer’s response form (Form F8A) and a copy of the General Protections Guide. The correspondence advised that the Form F8A must be completed by the Respondent and returned to the Commission within 7 days. The Commission has not received a Form F8A from the Respondent.
[3] On 17 July 2018 a Notice of Listing was sent via express post to two addresses for the Respondent for a Telephone Conference, before me on Thursday, 26 July 2018. I listed the matter for Telephone Conference with an interpreter in order to establish if the Applicant had any other material to file in the matter and also to ascertain if the Respondent intended to provide any material. A copy of the 6 June 2018 correspondence and relevant attachments were also sent to the Respondent with the Notice of Listing. The Commission attempted to contact the Respondent a number of times to participate in the Telephone Conference without success. The Applicant was available to participate in the Conference which proceeded at 2:10pm on Thursday, 26 July 2018. During the Conference the Applicant advised me that he did not wish to file any further written materials in the matter.
[4] Following the conference, further correspondence was sent on 27 July 2018 via express post to two addresses for the Respondent. The correspondence directed that the Respondent file with the Commission and serve on the Applicant a completed Form F8Aand the Respondent’s Outline of Argument: extension of time document by no later than close of business, Tuesday, 7 August 2018. Copies of both these documents were attached to the correspondence. The correspondence advised that the application will be listed for Telephone Conference/Hearing on Thursday, 9 August 2018 before me and the Commission would then determine if an extension of time should be granted. The correspondence advised that if the Respondent did not attend the hearing or contact my chambers with an acceptable reason for non-attendance, the hearing would proceed in the Respondent’s absence and a decision would be made in relation to the extension of time. A Notice of Listing was attached to the correspondence for the Objections Conference/Hearing by Telephone on 9 August 2018.
[5] The Commission attempted to contact the Respondent via telephone to connect Mr Jimee to the hearing. Mr Jimee’s telephone was answered by an individual who identified himself as a friend of the Respondent and advised that Mr Jimee was on holidays until Friday, 10 August 2018. The individual confirmed he was not an employee of the Respondent. The Respondent did not participate in the Hearing. The Applicant was available to participate in the hearing which proceeded in the Respondent’s absence. The Applicant gave evidence in support of his application for an extension of time and was assisted by a Somali interpreter.
[6] Following the hearing the Commission sent further correspondence on 10 August 2018 via express post to two addresses for the Respondent. The correspondence advised, among other things, that the Respondent had failed to notify the Commission that it would not be participating in the telephone hearing. However, in the circumstances, I had determined to provide the Respondent with a further opportunity to provide a response to the Commission’s correspondence. The correspondence advised that if a response was not provided by close of business Monday, 20 August 2018I would determine if an extension of time should be granted to the Applicant on the materials currently before the Commission.
[7] On 15 August 2018 the Respondent contacted my chambers by telephone. On 16 August 2018 my associate contacted Mr Jimee by telephone who confirmed he had received correspondence but queried the postal addresses the Commission had on its file. Following the discussion my chambers sent all relevant documents to the Respondent via email to the email address he had provided. The Respondent has not filed a response to the application or any materials with the Commission to date. An email was sent on 23 August 2018 to the Respondent advising that as a response had not been provided, a decision would be issued in relation to whether an extension of time should be granted to the Applicant on the materials currently before the Commission.
[8] I have determined the matter based on the materials filed and the evidence of the Applicant at the Objections Conference/Hearing.
Background
[9] The Applicant’s evidence is that he commenced employment with the Respondent as a full-time trolley collector at Woolworths in Broome on 17 December 2017 and was dismissed from his employment on 9 May 2018 effective immediately. The Applicant submits that he understands his employment was covered by the Cleaning Services Award 2010.
[10] The Applicant’s evidence is that from 17 December 2017 to late March 2018 he worked from 8:00am to 7:30pm Monday to Friday and he also worked all day Saturday and Sunday. From late March 2018 to 9 May 2018 the Respondent increased his working hours and he worked from 8:00am to 9:00pm Monday to Friday, as well as all day Saturday and Sunday. The Applicant claims he was informed that his working hours were increased due to Woolworths Broome extending its trading hours. The Applicant claims that between 17 December 2017 and 9 May 2018 the only days he did not work were the public holidays when Woolworths Broome was closed.
[11] The Applicant claims that his pay was not increased when his working hours increased in late March 2018. He submits that when he complained to Mr Jimee of the Respondent in or around late March 2018 in relation to the extra hours he was working without extra pay that he was told the Respondent would hire another employee to assist covering these hours. The Applicant claims in or around April 2018 he asked Mr Jimee for pay slips as he was concerned he was being underpaid and Mr Jimee did not respond to his requests. However, after repeated requests Mr Jimee provided him with four payslips in person. The Applicant claims that the payslips contained incorrect information in relation to his hours of work and pay period.
[12] The Applicant states that after receiving the pay slips he became even more concerned that he was being underpaid and sought advice from Legal Aid WA on 7 May 2018. The Applicant claims he understands that Mr Jimee “found out about me seeking Legal Aid’s assistance from a co-worker I know as Mahamoud”.
[13] The Applicant states that he attended work on 8 May 2018 and worked his full shift. However, on 9 May 2018 before he started work, Mr Jimee came to his accommodation and verbally told him that he was dismissed effective immediately, to hand over his job to a replacement employee that Mr Jimee brought with him and to leave his accommodation immediately. The Applicant claims he was not paid his accrued entitlements.
The law to be applied
[14] Section 366(1) of the Act provides as follows:
“(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).”
[15] Section 366(2) of the Act provides as follows:
“(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.”
Consideration
[16] Subsection 366(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd1, where the Full Bench stated that:
“[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.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “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 paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”2
[17] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
Matters to be taken into account pursuant to section 366(2)
[18] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[19] The Applicant submits that there were exceptional circumstances that prevented him from lodging the application. The Applicant submits there were barriers to him making the application and the circumstances below caused him additional difficulty and delay in seeking assistance and information in relation to a claim, accessing legal advice, understanding his rights and lodging the application. The circumstances referred to by the Applicant include the following:
• He has difficulty reading, writing and speaking English as he comes from a non-English speaking background and Somali is his primary language;
• He needed the assistance of interpreters to communicate with legal assistance providers;
• He is on a Safe Haven Visa and is not familiar with Australian employment laws;
• He lives in a regional area with limited access to services and resources;
• The Respondent evicted him from his accommodation immediately following his dismissal and he had to find alternative accommodation and is currently living in a caravan in Broome; and
• He does not have access to a computer and does not have an email address.
[20] Having considered the materials before me I am satisfied that the Applicant faced a number of significant barriers in lodging the application within time which, in combination, I consider to be an acceptable reason for the delay. This weighs in favour of a finding that there are exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[21] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.3 There was no action taken by the Applicant to dispute the dismissal. This matter weighs against a finding that there are exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[22] No evidence was adduced by the Respondent in this case to demonstrate prejudice. However, the absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.
(d) Merits of the application
[23] In his application the Applicant alleged that the Respondent contravened s.340 of the Act (Protection), in that the Respondent took adverse action against him by dismissing him because he exercised or proposed to exercise his workplace rights to receive pay slips and be paid correctly under the relevant modern award. Further, that he exercised or proposed to exercise a workplace right to make a complaint about his employment, being his increased hours of work without additional pay and the alleged incorrect information provided on his payslips. The Applicant submits there is a strong connection between him exercising or proposing to exercise his workplace rights and the Respondent terminating his employment.
[24] Further, the Applicant submits that the Respondent has engaged in a pattern of exploitative behaviour, which relied on his difficulty in enforcing his rights to avoid liability for its actions.
[25] I am not in a position, nor is it appropriate to embark on detailed consideration of the substantive case. However, on the material before me going to the merits of the Applicant’s general protections application, I am satisfied that the application has considerable merit. This weighs in favour of a finding that there are exceptional circumstances.
(e) Fairness as between the person and other persons in a like position
[26] This consideration is ultimately concerned with ensuring that consistent application of principle is achieved in determining whether an extended period of time within which to lodge an application should be allowed. The Applicant submits that the Commission has accepted applications lodged outside the statutory time frame for others facing fewer barriers, however, does not refer to any authority in support of this submission. Accordingly, I regard this factor as neutral.
Conclusion
[27] I am satisfied that there is an acceptable reason for the delay which weighs in favour of a finding of exceptional circumstances. I am not satisfied that the Applicant took any action to dispute the dismissal which weighs against a finding of exceptional circumstances. The merits of the application weigh in favour of a finding of exceptional circumstances. The other factors are neutral considerations. Taking into account all of the factors set out in s.366(2) of the Act I am satisfied there are exceptional circumstances that warrant allowing a further period for the making of an application under s.365 of the Act.
[28] I allow the Applicant an extension so that the period within which the Applicant can make his application is extended to 1 June 2018.
[29] An order to that effect will be issued concurrently with this decision.
COMMISSIONER
Appearances:
A Ali on his own behalf for the Applicant
Hearing details:
2018
Melbourne (Telephone Hearing):
9 August.
1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
2 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13], [15]
3 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
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