Ahmed Quakrim v Icon Construction Australia (NSW) Pty Ltd

[2014] FWC 5963

[2014] FWC 5963

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ahmed Quakrim
v
Icon Construction Australia (NSW) Pty Ltd
(U2014/7012)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] Thisapplication for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act)was heard by me in Sydney on 20 June 2014. Mr Quakrim lodged his application on 5 May 2014 six days outside the statutory time limit.

[2] Ms Raju, an Industrial/Legal Officer from the Construction, Forestry, Mining and Energy Union (CFMEU), appeared for Mr Quakrim. Ms DeBoos, solicitor, from K&L Gates, appeared for Icon Construction Australia (NSW) Pty Ltd (Icon).

[3] On 14 August 2014 I issued a Finding that Mr Quakrim's employment was terminated by Icon on 8 April 2014 and an Order dismissing Mr Quakrim's application for an extension of time for lodgement.

[4] The relevant legislative framework for the exercise of the Fair Work Commission’s (Commission’s) discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘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.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.” [Endnotes not reproduced]

[6] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] Ms Raju tendered a written submission 1 and a statement from Mr Quakrim2. Mr Quakrim also gave oral evidence and was cross-examined regarding conversations between himself and Mr Peter Manning, the previous Operations Manager of Icon, and of a brief conversation with Mr Julian Doyle, the Construction Director and part owner at Icon.

[8] Icon’s solicitor tendered a written submission outlining its opposition to an extension of time 3and a statement from Mr Julian Doyle4. Mr Doyle also gave oral evidence.

[9] Having considered the written and oral evidence of the parties I was satisfied and found that the facts in relation to the termination of Mr Quakrim’s employment were as summarised below.

[10] In November 2012 Icon agreed to offer a number of Southern Cross Construction’s employees further employment after that company went into liquidation. The applicant was one of those employees. On or about 5 December 2012 the applicant notified Peter Manning that he would need to take time off work to allow a non-work related injury time to heal.

[11] Mr Quakrim remained in regular contact with Icon through Peter Manning and Lewis Yazbek, the now General Manager, between December 2012 and April 2014.

[12] Mr Quakrim attended a meeting with Julian Doyle on 8 April 2014. He was told at this meeting that there was no work available for him with Icon. Following this meeting Mr Quakrim met with Robert Kera of the CFMEU who recommended that the applicant consider lodging an unfair dismissal application. Despite Mr Kera’s advice an application was not lodged until 5 May 2014. Mr Quakrim did not believe that he had been dismissed and he did not lodge an application.

[13] On 17 April 2014 Mr Quakrim became ill. He consulted his general practitioner who advised him to rest. On 23 April 2014 he attended Mona Vale emergency department from whence he was referred for an ultrasound and sent home. Mr Quakrim provided a medical certificate which diagnosed him as suffering from fatty liver disease 5.

[14] I considered the various criteria to which my attention is directed by s.387(3) of the Act.

reason for the delay – s.394(3)(a)

[15] Given my findings to the date of termination of employment I necessarily examined the circumstances surrounding Mr Quakrim’s application for an extension of time from the date which was most favourable to him. I concluded that, even taking into account his period of ill-health, there was sufficient time in which Mr Quakrim could have made enquiries and lodged an application within the time limit. There was no material before me which demonstrated any physical inability to lodge an application. Even though I accepted Mr Quakrim was unwell there was no evidence that he was so incapacitated so as to be incapable of lodgement. Lodgement can take place without a personal attendance at the Commission. Even had I accepted that Mr Quakrim had been totally incapacitated for a time he could have lodged his application between 8 April 2014 and 17 April 2014. He was in receipt of advice from Mr Kera that an application should have been lodged. He did not accept that advice and failed to attend to lodgement.

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

[16] Mr Quakrim became aware of his dismissal on 8 April 2014.

any action taken by the person to dispute the dismissal – s.394(3)(c)

[17] Mr Quakrim attended a meeting with Icon and put his position regarding the continuation of his employment. Following this meeting he took no action to dispute Icon's contention that he was no longer employed.

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

[18] I was satisfied that Icon would be prejudiced if the application were to proceed because of the time that has elapsed since Mr Quakrim last worked for Icon.

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

[19] It was not possible to decide the merits of the application on the material before me. Merit was a neutral consideration.

fairness as between Mr Quakrim and other persons in a similar position – s.394(3)(e)

[20] This was not a relevant factor in Mr Quakrim’s application.

[21] I considered the evidence and submissions in this application. I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and dismissed the application.

SENIOR DEPUTY PRESIDENT

 1   Exhibit CFMEU 1

 2   Exhibit CFMEU 2

 3   Exhibit Icon 1

 4   Exhibit Icon 2

 5   Exhibit CFMEU 2 Attachment D

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