Ahmed Elzeiny v Combined Dispensaries Friendly Society Ltd T/A Friendly's Chemist

[2010] FWA 7291

[2010] FWA 7291

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ahmed Elzeiny
v
Combined Dispensaries Friendly Society Ltd T/A Friendly’s Chemist
(U2010/9100)

COMMISSIONER ROBERTS SYDNEY, 21 SEPTEMBER 2010

Application for unfair dismissal remedy - extension of time.

[1] This decision concerns an application lodged by Mr Elzeiny (the Applicant) on 25 May 2010 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of his employment by Combined Dispensaries Friendly Society Ltd T/A Friendly’s Chemist (the Company).

[2] Mr Elzeiny’s application was filed by his former solicitors, Miller & Young, on 25 May 2010. Those solicitors filed a Notice of Representative Ceasing to Act on 29 July 2010. The application states that the termination of employment took effect on 10 May 2010. Accordingly, his application was filed 1 day outside the 14 day time limit prescribed by the Act and therefore requires me to consider whether to grant Mr Elzeiny an extension of time for filing.

[3] A hearing to determine whether an extension of time should be granted was held before me in Sydney on 14 September 2010. Prior attempts to convene a conciliation conference had failed, the circumstances of that failure are unclear and I am unable to determine whether fault lies with the Applicant or his former solicitors. At the hearing on 14 September 2010, Mr Elzeiny represented himself and the Company was represented by permission by Mr G Jervis, solicitor.

Legislative Framework

[4] Subsections 394(2) and (3) of the Act provide:

“(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Background

[5] Mr Elzeiny commenced his employment with the Company as a Pharmacist on 9 November 2009. He was dismissed by the Company on and from 10 May 2010. Mr Elzeiny maintains that the termination of his employment was unfair. The Company disputes this and also opposes an extension of time.

Evidence

[6] Mr Elzeiny gave sworn evidence. He said that his application was filed late for two main reasons. Firstly that he was shocked by his dismissal and secondly that his solicitor failed to act promptly to file an application for relief. He went on to say that he first saw his former solicitor some three to four days before the expiry of the 14 day time limit and was told that the application must be filed quickly.

[7] “The reason of lodging my first application after the deadline, I wasn’t even familiar with that till today. Even my solicitor didn’t even mention to me that he lodged the application after the due date. He didn’t tell me that. None of his letters, none of his communication or correspondence to me was mention about that. I believe the main reason of what happened, partially I took it late, I took three or four days before because I wasn’t familiar but the main reason is my solicitor himself, he did have three or four days to write this letter and he didn’t do it. He didn’t do it before the due date, if that was – he definitely knows about – you know, if it was 14-days rule or 15-days rule, he should know that and he should lodge it before that date.” 1

[8] Mr Elzeiny went on to say: “I wasn’t familiar with the law and my solicitor, that’s why I left him, because he wasn’t very competent. He didn’t even show up in the first conference.” 2

[9] I asked Mr Elzeiny at the end of his evidence in chief: “The reason you’re advancing to me, as I understand it, is that you put yourself in the hands of your solicitor, and I think you said at some stage that you saw him three to four days prior to the expiry of the 14 days and you say that you relied on him to file within time?” and Mr Elzeiny replied: “Yes.” 3

[10] In cross-examination, Mr Elzeiny maintained his evidence that his solicitor was instructed by him to file an application quickly and failed to do so. He went on to say that around the time he saw his solicitor, he was under pressure about various matters such as moving house, selling a property and being involved in a car accident 4.

[11] Mr Elzeiny did not make oral submissions, preferring to rely on his earlier evidence. Mr Jervis made oral submissions.

[12] In his submissions, Mr Jervis said:

• The Applicant has not established any exceptional circumstances warranting an extension of time.



• The Applicant was dismissed for gross misconduct.



• Mr Elzeiny should not be believed that he “was not aware of the objection to the extension of time, given that he did receive a copy of it. He has acknowledged that he did received a copy of the form F53 and he had communication with his lawyer about it.” 5



• Alleged representative error is not an exceptional circumstance and the Applicant did not seek legal advice in a timely fashion.



• The Respondent would suffer prejudice if an extension of time was granted. The Applicant did not make himself available for conciliation proceedings and did not file materials in accordance with my Directions.



• Prejudice would also occur to the Respondent as it was entitled by Mr Elzeiny’s actions or lack of actions to presume that he would not be pursuing his application. His application is an abuse of process.



• Little weight should be given to the Applicant’s alleged lack of knowledge concerning possible legal remedies in the light of his excellent command of English and educational history.

[13] Mr Jervis submitted several Court and Tribunal decisions in support of his submissions. I have paid regard to the case law cited.

The reason for the delay

[14] I have noted Mr Elzeiny’s evidence on this point and the submissions of Mr Jervis. I accept Mr Elzeiny’s evidence as being largely truthful especially concerning his interaction with his former solicitor. I find that there are exceptional circumstances to account for the delay in filing of one day. The concept of ‘exceptional circumstances’ has been considered in several decisions of the Tribunal and I find that such circumstances apply here. I have further considered the concept of ‘exceptional circumstances’ later in this decision.

When the Applicant first became aware of the dismissal

[15] I am satisfied and find that Mr Elzeiny became aware of his dismissal on 10 May 2010.

Action to dispute the dismissal

[16] Mr Elzeiny does not appear to have taken any such action except to seek legal advice.

Prejudice to the Respondent

[17] I am unable to discern any significant prejudice to the Company which would be caused by the granting of an extension of time but that factor in itself is not a reason to extend time. Any respondent faced with legal action of the type initiated by Mr Elzeiny will incur inconvenience and costs.

Merits of the application

[18] The reasons for the termination of Mr Elzeiny’s employment are contested between the parties. I am unable to express a final view on merit and merit has been neutral in my consideration. However, Mr Elzeiny should note that the allegations against him are of a very serious nature and if substantiated, would, in my view, be fatal to his application.

Fairness between the Applicant and other persons in a similar position

[19] Neither side considered this to be relevant to the current case and I agree. It has therefore being a neutral factor in my consideration.

Conclusion

[20] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …” In this application, Mr Elzeiny relies on representative error constituting such exceptional circumstances.

[21] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 6. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’7. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services8where the Commissioner said:

“Branson J in a decision of the Full Court of the Federal Court 9 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.  10”

[22] The Concise Oxford Dictionary 11 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.12

[23] In Clark and Ringwood Private Hospital 13the Full Bench held that the question of whether an error by an applicant’s representative constitutes an explanation for delay is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. In this case, it appears clear that representative error is the major, and possibly only, factor in the late lodgement of the application. Mr Elzeiny was diligent in pursuing his case with his solicitors and was not the cause of any delay. He was entitled to rely on the advice of his solicitors.14 The other factors such as moving house etc. have not influenced my decision as in such circumstances it is up to an applicant to decide which matters in his life he should give priority to.

[24] All in all, the apparent failure by Mr Elzeiny’s former solicitor to file the application within time is sufficient in my view to constitute an exceptional circumstance sufficient to render extension of time just and equitable. I therefore grant Mr Elzeiny an extension of time and the time for lodgement of his application is extended until the actual date of filing.

[25] A further attempt to convene a conciliation conference will be made. That conference will occur before me unless either party would prefer another Member to conduct it. The parties have seven days from the day of this Decision to advise my Chambers of their view. Mr Elzeiny should note that failure to attend a conciliation conference may result in his application being struck out.

[26] An order reflecting this Decision is in PR501835.

COMMISSIONER

Appearances:

A Elzeiny, the Applicant.

G Jervis for the Company.

Hearing details:

2010.

Sydney:

September 14.

 1   Transcript PN84.

 2   Transcript PN91.

 3   Transcript PN92.

 4   Transcript PN137.

 5   Transcript PN160.

 6   [2010] FWA 1394.

 7   Ibid, at paragraph 28.

 8   [2009] FWA 1638.

 9 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 10   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

 11   Oxford University Press, Oxford, 1982.

 12   Transcript PNs111-112.

 13   Print P5279, 22 September 1997.

 14   See also the decisions in Cruz v Australia Post Corporation [2008] AIRCFB 452 and El Arja v Rail Corporation New South Wales [2009] AIRCFB 809.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR501834>