Ajaz Mohammed v Veolia Transport (NSW) Pty Ltd

[2013] FWC 1774

[2013] FWC 1774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ajaz Mohammed
v
Veolia Transport (NSW) Pty Ltd
(U2012/14182)

DEPUTY PRESIDENT BOOTH SYDNEY, 22 MARCH 2013

Termination of employment - alleged unfair dismissal - application for extension of time.

[1] In this matter the applicant, Mr Ajaz Mohammed, asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act 2009 (the Act) to grant a remedy for unfair dismissal from his employment with Veolia Transport (NSW) Pty Ltd (Veolia) effective 27 or 28 August 2012. 1

[2] The application was made on 11 October 2012, 44 or 45 days after the date of effect of his dismissal and 30 or 31 days out of time. To be within time Mr Mohammed would have had to have lodged his application by 10 or 11 September 2012.

Threshold question

[3] The matter before me is confined to submissions in relation to the respondent’s objection that the application is 30 days outside the 14 day time limit imposed by section 394(2) of the Act (at the relevant time) and there are no exceptional circumstances justifying the Commission exercising its discretion to grant an extension of time. Mr Mohammed bears the onus in relation to this matter.

[4] Permission was granted for Mr Ajaz Mohammed to be represented by Mr Gibian of counsel and for Veolia to be represented by Mr Nick Chadwick, solicitor, Chadwick Workplace Law.

Background

[5] Mr Mohammed was employed as a casual bus driver with Veolia on 25 February 2007. On 18 January 2008, Mr Mohammed was made a permanent bus driver. On 9 July 2012, Mr Mohammed suffered a foot injury. On 1 August 2012 Mr Mohammed prepared a workers’ compensation claim in light of the foot injury. On 8 August 2012, the claim was denied. On 26 August 2012, Mr Mohammed was provided with a fitness for work certificate. On 27 or 28 August 2012, Mr Mohammad attended a meeting with management. On 27 or 28 August 2012, Mr Mohammad was terminated for serious misconduct due to making an allegedly dishonest workers’ compensation claim. He received a termination of employment letter on 29 August 2012.

[6] Mr Mohammed initially lodged an application pursuant to s.365 of the Act on 30 August 2012 in relation to his dismissal and conferences were held in the Commission on 12 September and 4 October 2012. The matter was not resolved and a certificate pursuant to s.369 of the Act was issued.

Submissions

[7] Mr Mohammed identifies a set of circumstances pertaining to the delay in the lodgement of his application for an unfair dismissal remedy that he says, taken together, constitute exceptional circumstances within the meaning of the Act. These circumstances are:

• The applicant filed an application challenging his dismissal two days after his employment was terminated;



• The applicant filed a general protections application rather than an unfair dismissal application as a result of advice he received from the then Fair Work Australia (FWA) registry;



• The applicant’s understanding of the legal processes and capacity to provide clear instructions to his advisers was hampered by his limited English;



• The applicant’s capacity to progress proceedings arising from his dismissal was hampered by being subject of the WorkCover investigation and the risk of prejudice to him in the context of that investigation;



• A substantial part of the delay was occasioned by the period necessary for the TWU to obtain instructions, ascertain the status of the WorkCover investigation and seek legal advice;



• The general protections application was subject of conciliation before FWA and a part of the delay was occasioned by a desire to attempt to resolve the matter through that process;



• The unfair dismissal application has substantial merit and strong prospects of success. 2

[8] Veolia say that these circumstances do not warrant the exercise of the Commission’s discretion and that in fact the delay was brought about by Mr Mohammed and his representative’s choice of remedy, general protections. In particular they say that at any time after 7 September 2012 (3 or 4 days before the time ran out for a competent unfair dismissal application to be made) the general protections application could have been discontinued on the advice of the TWU and an application for an unfair dismissal remedy made within time.

The relevant statutory framework

[9] An application for an unfair dismissal remedy in relation to a dismissal before 1 January 2013 pursuant to s.394 of the Act must have been be made within 14 days after the dismissal took effect or within such further period as the Commission allows.

[10] At the relevant time the Act read as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

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

(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.”

[11] It is important to appreciate the purpose of limitation periods such as that contained in the Act. The Act has been amended from 1 January 2013 to provide for a period of 21 days within which to lodge an application. The limitation period is quite deliberate.

[12] It is useful to refer to the decision of McHugh J in Brisbane South Regional Health Authority v Taylor 3 where he says:

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.”

and

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

and

“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.”

and

“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

[13] To exercise my discretion in favour of the applicant under s.394(3) of the Act I must be satisfied that there are exceptional circumstances justifying the exercise of that discretion.

[14] The term ‘exceptional circumstances’ has been helpfully summarised by a Full Bench of FWA in Nulty v Blue Star 4as follows:

“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.”

and

“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”.

[15] A recent Full Bench has found that delay occasioned by the conduct of a general protections action does not, in itself, constitute exceptional circumstances.

[16] In George Przedpelski v Trustee of Czapp Pty Ltd t/a Airport Doors Pty Ltd 5 the Commission considered a circumstance where a general protections application had been lodged and hence made an application pursuant to s.394 of the Act following the conclusion of the s.365 matter.

[17] At paragraphs 11 – 14 the Full Bench said:

“[11] ...the ultimate question that the Deputy President needed to determine was whether there were exceptional circumstances that warranted an extension of time being granted with respect to the period from the date of termination to the date of making the application - a period of approximately five months.

[12] The Deputy President noted at paragraph [10] of the decision (and perhaps again not recording accurately) that the application was made over three months outside the 14 days from dismissal provided by s.394 of the Act. The Deputy President also said in paragraph [24] of the decision that the application was made more than 14 days from the issue of a certificate, even if he was to ignore the earlier period of delay.

[13] In our view it is clear that the earlier period of delay is relevant to the question of whether to extend time. The fact that another application was made under s.365 of the Act, in our view, is not an exceptional circumstance that warrants an extension of time. In all of the circumstances we are of the view that the Deputy President was correct in concluding that there were no exceptional circumstances warranting an extension of time. We come to that view while acknowledging the error he made in recording the date of the actual application.

Conclusion

[14] Having regard to the consideration above, we do not believe that it is in the public interest that permission to appeal be granted in this matter. We therefore dismiss the application for permission to appeal.” 6

[18] In that case the applicant made his own decision to commence both causes of action. This case is authority for the proposition that the making of one application that is unsuccessful followed by another that is, by virtue of the conduct of the first application, out of time, is not of itself an exceptional circumstance.

[19] In cases where a representative has made a decision that results in delay the reason/s have been regarded as giving rise to exceptional circumstances.

[20] The Full Bench in Carlito Cruz v Australia Post Corporation 7 considered circumstances similar to those in this matter. The appellant, who was the applicant at first instance, had been refused an extension of time to lodge an unfair dismissal application.

[21] He was represented by his union and in its capacity as his representative it applied for a review of his dismissal by a Board of Reference. The review was adverse to the applicant and he then lodged an unfair dismissal application, 31 days beyond the 21 day time period provided in the legislation at that time. A circumstance that pertained in this case that is certainly not present in the matter before me was the existence of an agreement between the parties that Australia Post would not object to extension of time applications when applicants had availed themselves of the Board of Reference. However the Full Bench, commenting on significant prior cases, confirmed that the Commission was not bound by such an agreement and was required to exercise its own discretion and discounted the existence of the agreement in its reasons.

[22] The Full Bench at paragraphs 33 - 36 said:

“[33] In the present case the material before the Senior Deputy President established that the CEPU had actively advised the Appellant that he should act as he did. 13 His Honour accepted that such advice was given.14 Thus, the circumstances of the present case were different from Smart in this critical respect and, assuming that the CEPU was wrong in giving the Appellant the advice that it did, brought the present case squarely within the observations in paragraph [7] of the Full Bench’s reasons emphasised in the extract set out above.

[34] Moreover, it is difficult to discern the basis for the statement of the Senior Deputy President in paragraph [11] that “[t]here is no suggestion Mr Cruz sought advice on what time limits might apply”. The application for relief discloses that the Appellant is a Filipino whose first language is not English and who was employed as a “mail officer”, a low level position. It may readily be inferred on the balance of probabilities that the Appellant is precisely the sort of person who would, more than most, depend upon a union or other expert for advice in the circumstances in which he found himself; and reasonably so. There was no evidence that the Appellant did not seek advice on the contents of the termination letter, including in relation to what time limits apply. However, again, it may readily be inferred that he took the termination letter to a CEPU representative and sought his or her advice on what he should do. How else would the CEPU come to be providing the advice that it did? Even if the Appellant did not specifically “seek advice on what time limits might apply”, it would offend the notion of a “fair go all round” to hold this against him in circumstances where he clearly took the matter of his termination to the CEPU for assistance and reasonably relied upon the CEPU to look after his interests in contesting the termination.

[35] For the sake of completeness, the giving of wrong advice by a union is a species of representative error. Representative error as an acceptable explanation for delay in filing an application for relief against termination of employment was considered at length by the Full Bench in Clark v Ringwood Private Hospital 15(Clark). A Full Bench in Davidson v Aboriginal & Islander Child Care Agency16 (Davidson) usefully summarised the propositions emerging from Clark as follows:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[36] Notwithstanding that Davidson was decided before Brodie-Hanns, it is not inconsistent with Brodie-Hanns andthese propositions may be seen as giving content to the observation of the Full Bench in Smart that a failure by a union to give correct advice “would not normally weigh against the employee”. Obviously, Brodie-Hanns should be seen as identifying the “other factors” referred to in proposition (iv).”

[23] The Explanatory Memorandum to the Fair Work Bill explains that the Commission has discretion to extend the timeframe for making an unfair dismissal application if it is satisfied that there are exceptional circumstances.

[24] The Explanatory Memorandum states:

“1573. This discretion must be exercised in accordance with subclause 394(3), which provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. These factors are based on the principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.”

[25] Accordingly Carlito Cruz and Australia Post Corporation remains relevant to the current statutory framework determined as it was on the basis of the principles of Brodie-Hanns which in turn were the principles that laid the foundation for the provisions of the current Act.

[26] The Full Bench overturned the decision at first instance granting the extension of time, and the reasoning is relevant to the matter before me. The Full Bench at paragraphs 38-44 said:

“[38] The reason for the Appellant’s delay in filing his application for relief was his reasonable reliance on advice from the CEPU that he should first pursue a Board of Reference review and, only if that review was unsuccessful, file an application for relief against termination of employment. That advice was consistent with the Agreement. The Agreement indicates the preparedness of Australia Post to subject itself to an application for relief filed outside the time limit in s.643(14) but within the timeframe contemplated in the Agreement.

[39] The Appellant, through his union, took immediate action to actively contest the termination by applying for a review by a Board of Reference the day following the termination. This factor favours the granting of an extension of time.

[40] Australia Post did not oppose the granting of an extension of time and did not identify any prejudice accruing to it, whether caused by delay or otherwise.

[41] While the misconduct grounding the decision to terminate (altering a medical certificate) was admitted, the contention of the Appellant was that, in all the circumstances, the termination was harsh. A determination on that issue cannot be made in the absence of detailed evidence. The Senior Deputy President seems to have proceeded on the basis that the merits of the application was “a neutral consideration”. 17 We agree.

[42] The Senior Deputy President accepted the Appellant’s argument that considerations of fairness as between the Appellant and other persons in a like position “does weigh in favour of extending the period for lodgement.” 18 We agree.

[43] In all the circumstances we were satisfied that there was an acceptable explanation, indeed a compelling explanation, for the delay in filing the application for relief in this case that made it equitable to extend time. In all the circumstances we were positively satisfied that time should be extended.

[44] It should be noted that we do not intend that our decision on the rehearing should be seen as depending on the existence of the Agreement. In all the circumstances of this case, even in the absence of the Agreement we would still have been satisfied that there was an acceptable explanation which made it equitable to extend time.”

Consideration

[27] I will deal with the circumstances, including each of the matters required by s.394(3) of the Act to be considered, in turn.

(a) the reason for the delay

[28] Mr Gibian made it clear in submissions that the reason for the delay was the general protections application and the subsequent decision that this was not the appropriate cause of action for Mr Mohammed’s circumstances. 8 However this begs the question of why the general protections action was lodged, why it was proceeded with, why the unfair dismissal application was lodged when it was and whether any of these reasons contribute to a finding that there are exceptional circumstances in this case.

[29] Mr Mohammed is of Indian descent and has a limited command of English. His uncontested evidence is that immediately following his dismissal he attended the Registry of FWA (as it then was) and spoke to an officer, who on the strength of his explanation of the circumstances of his dismissal, gave him one form to complete. It was a general protections application form. He completed it with the assistance of a friend and lodged it on the spot. His evidence is that he did not know what the cause of action was, only that it was to dispute his termination. It is uncontested that he used the words “I hereby think so that this is not a fair reason to terminate my employment, please do the needful” on the application form.

[30] Mr Mohammed went to the TWU for assistance on 7 September 2012. On 10 September 2012 the TWU filed a form F53 Representative Commencing to Act. It is the evidence of Mr Warnes, Legal Officer for the TWU, that he received Mr Mohammed’s case on this date and on 12 September 2012 he met with Mr Mohammed for the first time, on the occasion of the first conciliation in his general protections application. Mr Warnes was not assisted by an interpreter at that meeting. The conciliation was adjourned in part because a full exchange of views was considered to be constrained by a suggestion that Mr Mohammed was being investigated by WorkCover NSW and Mr Warnes was concerned that Mr Mohammed’s position could be compromised. In any event it is clear from the evidence that Mr Warnes did not question the relevance of the general protections application on that occasion. In fact Mr Warnes gave evidence that he drafted an amended general protections application on behalf of Mr Mohammed sometime after 19 September. It was 28 September 2012 before Mr Warnes “began to form the view that the matter would be better dealt with under the unfair dismissal provision of the Act” 9 In effect Mr Warnes said that in part his reason for continuing along the pathway of the general protections application was due to his “difficulties obtaining proper instructions from Mr Mohammed and I did not have a full understanding of the facts of the termination.”10 It is clear that apart from a suggestion at the conciliation of the general protections matter on 4 October 2012 that the disputed termination might be better addressed via an unfair dismissal application this was not seriously considered until counsel’s opinion was sought on 9 October and obtained on 11 October, the day Mr Mohammed’s application for unfair dismissal remedy was lodged. Mr Chadwick for Veolia says that at any time after 7 September the TWU could have lodged an unfair dismissal application and they did not.

[31] I conclude that Mr Mohammed had no basis upon which to question the relevance of the cause of action he was pursuing – he has limited English, no knowledge of the law, he completed the only form provided to him by an officer of FWA (as it then was) and was wholly reliant on the TWU to provide him with advice and guidance. Up until 11 October they did so by steering him through the pathway of his general protections application to the point of a s.369 certificate being issued when the matter could not be resolved by conciliation on 4 October 2012. As Mr Gibian said on a number of occasions in his submissions, no blame could be could be attached to Mr Mohammed concerning these unfolding events.

[32] This is not a case of an applicant shopping around for causes of action and when one fails starting another. It is a case of an arguably inappropriate application being mistakenly made due to the applicant’s poor command of English compounded by representative error in its continuation beyond the limitation period for the application that was most appropriate. The principles affirmed in Carlito Cruz and Australia Post Corporation,set out in Clark v Ringwood Private Hospital apply to this case. In particular the conduct of Mr Mohammed was consistent with an applicant seeking to progress his case. I think the Full Bench’s reference to the observation of the Full Bench in T Smart and Australian Postal Corporation 11that a failure by a union to give correct advice “would not normally weigh against the employee” is pertinent to this case. This is what distinguishes the circumstances from those present in George Przedpelski v Trustee of Czapp Pty Ltd t/a Airport Doors Pty Ltd where Mr Przedpelski had exercised his own choice of application.

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

[33] It is uncontested that Mr Mohammed became aware of the dismissal after it had taken effect. Indeed whether the date of effect of the dismissal was 27 or 28 August 2012 it is clear that he contacted and attended FWA (as it then was) almost immediately making it clear that he was aware that he had been dismissed. I find that this factor is neutral regarding a finding in relation to an extension of time in this matter.

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

[34] It is uncontested that Mr Mohammed contacted FWA (as it then was) on the day that he was dismissed. He attended the registry two days after he was dismissed and lodged a general protections application. I accept that this constitutes “action taken by the person to dispute the dismissal”. I find that his conduct in this regard does not weigh against a finding in favour of an extension of time in this matter.

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

[35] The respondent submits that it would be prejudiced by the conduct of an unfair dismissal application in circumstances where it has already expended time and resources on the general protections application. It is further contended that an adjournment application allowing the matter to be rescheduled from 7 December adds to this prejudice.

[36] I agree that it is onerous for an employer to face multiple causes of action in relation to the same complaint and there is a general policy presumption against this outcome. In particular the longer the time period from a dismissal the greater the practical difficulty of reinstatement, the primary remedy in an unfair dismissal application. This does count against an extension of time being granted. However the circumstances of this case outweigh my conclusions concerning prejudice on this occasion.

(e) the merits of the application

[37] Veolia dismissed Mr Mohammed on grounds of loss of trust and confidence in him due to his completion of an allegedly dishonest workers’ compensation claim. The termination letter states, inter alia:

“The Company has formed the view that your conduct in filing your workers compensation claim which was denied by the Company’s insurer for the reason that it has been found that the injury was not sustained at the location claimed by you, demonstrates that the trust and confidence between you and the Company which is the foundation of the employment relationship has been severely damaged. Taking into account your employment history at Veolia, the Company has decided to terminate your employment.” 12

[38] The merits of Mr Mohammed’s application turn on evidence about the time and location of his injury and Mr Mohammed’s state of mind; that is, his intention, when he filed his claim. There is no contest that there is an injury, although there is a suggestion in submissions that there was a pre-existing chronic injury. Mr Mohammed contends that it occurred on the way to work. It is not clear from the submissions whether the contest is confined to whether it occurred on the employer’s premises or not and whether it occurred on the day Mr Mohammed contends or not.

[39] Mr Gibian said that it had to be taken into account that the workers’ compensation arrangements in NSW concerning what are colloquially known as “journey accidents” changed only 8 days prior to the lodgement of Mr Mohammed’s claim, so that it is understandable that he would not be aware that he should not file a claim for an injury sustained on the way to work but off the premises of the employer.

[40] Mr Chadwick referred to other matters in Mr Mohammed’s employment history that were in the mind of the respondent when they made their decision to dismiss him, however, they were not elaborated on and were not in evidence. Therefore the only weight I place on them is to observe that they would need to be ventilated in any hearing of Mr Mohammad’s application if they were to be put forward as additional reasons for his dismissal.

[41] I am not in a position to judge the merits of Mr Mohammed’s case save to say that the respondent’s submission that the application has no reasonable prospects of success is overstated. There is a factual contest and legal argument to be heard regarding the matters referred to above. I conclude from this that the merits of Mr Mohammed’s case weigh neither for nor against his application for extension of time.

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

[42] There is no evidence to suggest that this factor is relevant to my consideration in this matter.

Conclusion

[43] These are circumstances that fit the description in Nulty v Blue Star, of ‘out of the ordinary course, or unusual, or special, or uncommon’ notwithstanding that they are not ‘unique, or unprecedented, or very rare’. In particular they fall into the category of circumstances that taken in isolation would not necessarily be exceptional, but taken together combine to form an exceptional circumstance. I refer to the combination of Mr Mohammed’s lack of English language skills, his completion of the one form provided to him by the FWA (as it then was) registry, his lack of comprehension of the cause of action he was commencing and his complete and unquestioning reliance on the guidance of his union. It is a circumstance that I think justifies the exercise of the discretion available to the Commission. The onus as outlined by McHugh J in Brisbane South Regional Health Authority v Taylor when he says, “[t]he discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question”, has, I believe, been discharged by Mr Mohammed. Given the exceptional circumstance found, and guided by the principle of Nulty v Blue Star, I am of the view that it is fair and equitable that an extension of time be granted.

[44] Accordingly an extension of time is granted and Mr Mohammed may proceed with his application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

M Gibian, of Counsel, with T Warnes, Transport Workers’ Union of Australia, for Mr Ajaz Mohammed

N Chadwick, Chadwick Workplace Law, with R Allen for Veolia Transport (NSW) Pty Limited

Hearing details:

2013.

Sydney:

8 March.

 1   Mr Mohammed contends that he was dismissed in a meeting on 27 August 2012 but his letter of termination references a meeting on 28 August and cites this date as the date of effect of the dismissal. Nothing turns on this difference between the parties.

 2   Applicant’s Outline of Submissions on Extension of Time, p.4

 3   Brisbane South Regional Health Authority v Taylor (1996) CLR 541

 4   [2011] FWAFB 975

 5   [2012] FWAFB 8577

 6   Ibid., PN11-14

 7   [2008] AIRCFB 452

 8   Transcript PN211

 9   Ibid. PN133

 10   Ibid. PN136

 11   [2008] AIRCFB 124

 12   Form F2 Application for Unfair Dismissal Remedy - Attachment “A”

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