Al-Shaban v St John's Community Care Pty Ltd

[2020] FWC 4748

[2020] FWC 4748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Al-Shaban
v
St John’s Community Care Pty Ltd
(U2020/4134)

DEPUTY PRESIDENT LAKE BRISBANE, 18 SEPTEMBER 2020

Application for an unfair dismissal remedy – application made approximately 1134 days outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

Introduction

[1] On 3 April 2020, Mr Al-Shaban (the Applicant) made an application pursuant to s.394 if the Fair Work Act 2009 (the Act), alleging that the dismissal of his employment by St John’s Community Care Pty Ltd (the Respondent) was harsh, unjust or unreasonable. On 24 March 2020, the Respondent filed a Form F3 – Employer response. In the Form F3, the Respondent raised a jurisdictional objection on the basis that the application was filed out of time.

[3] Section 394(2)(a) of the Act requires that an such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[4] Section 394 of the Act relevantly provides:

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 21 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.

[emphasis added]

Background

[2] It is common ground between the parties that the Applicant began working for the Respondent as a Care Worker on 14 January 2016 and did so until the termination of his employment by the Respondent for alleged serious misconduct. The Applicant was notified of his dismissal on 7 February 2020 and the dismissal took effect from that date. Accordingly, the application was lodged approximately 1,151 days (3 years, 1 month and 27 days) after the dismissal took effect. It is over 3 years out of time.

[3] On 13 May 2020, the Chambers of Vice President Catanzaritiwrote to the Applicant noting that the Application appeared to be lodged out of time and requested a written response explaining whether there were exceptional circumstances for not lodging the application on time.

[4] The Applicant provided his response on 26 May 2020. On 28 May 2020, the Vice President’s Chambers served the Applicant’s response on the Respondent and advised the parties that the matter had been allocated to my Chambers on 28 May 2020 to determine whether the Commission should exercise its discretion to extend the time limit pursuant to s.394(3) of the Act.

[5] On 15 June 2020, my Chambers issued a notice of listing and directions. The matter was listed for mention/directions on 2 July 2020, followed by a jurisdictional hearing on 29 July 2020. The directions provided deadlines for the filing of written submissions, witness statements and other evidentiary materials.

[6] The mention/directions listed for 2 July 2020 did not proceed as the Applicant was unable to be contacted. Materials were not filed in accordance with directions, and on 17 July 2020, my Chambers had cause to write to the parties requesting their materials and an explanation as to the non-compliance with directions.

[7] Despite this request, the parties did not file formal written submissions, witness statements or other evidence. The parties attended the jurisdictional hearing on 29 July 2020. It was determined that the matter would be decided on the basis of the oral submissions of the parties, the materials submitted (including the F2, F3, the written response of the Applicant to the Vice President), as well as any materials which could establish the accuracy of the Applicant’s oral submissions at the hearing. The Applicant was provided until 12 August 2020 to provide this material. The materials were submitted to my Chambers in accordance with this direction. The evidence provided was sporadic, but it was reliable and without fabrication. The Applicant has provided a true account and a large amount of documentary evidence, which I have given due consideration to.

Consideration

[8] As set out above, section 394(3) of the Act allows the Commission to allow for a further period for an application to be made only if it is satisfied that there are ‘exceptional circumstances’ which contributed to the delay in making the application. This has aptly been described as a ‘high hurdle’ for Applicants. 1

[9] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 2 as follows:

[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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.

[10] A Full Bench of the Commission in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis), 3 set out the following regarding how

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[11] The factors under s.394(3) which must be taken into account are:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

Reason for the delay – s.394(3)(a)

[12] The Applicant’s explanation for the delay was twofold. First, the Applicant alleged representative error on the part of Sarah Lock of Shine Lawyers. Second, the Applicant asserted that he had suffered a number of serious health conditions.

[13] On the issue of representative error, the Applicant provided a number of documents which establish the following serious of events:

•  On 21 February 2017, a consultation by phone took place between Ms Sarah Lock of Shine Lawyers and the Applicant;

•  On 17 March 2017, Shine Lawyers sent an email to the Applicant which stated that a written advice would be provided to him within 14 working days;

•  On 19 May 2017, Shine Lawyers wrote to the Applicant advising that Ms Sarah Lock was no longer employed by them and that his matter would be handled by Mr Jack Donaghy;

•  On 25 May 2017, the Applicant sent an email to Shine Lawyers asking why he had not heard anything further regarding his matter;

•  On 12 June 2017, the Applicant had a telephone consultation with Mr Jack Donaghy of Shine Lawyers. During the consultation, the Applicant was advised by Mr Donaghy that he should find alternative legal representation due to complaints raised by the Applicant about Ms Lock’s handling of his matter; and

•  On 27 February 2020, the Applicant received written advice from Turner Freeman Lawyers regarding a professional negligence enquiry about Shine Lawyers. The advice stated that Turner Freeman were not prepared to act for the Applicant on the basis that any sum recoverable would likely be outweighed by legal costs and disbursements.

[14] On the issue of the Applicant’s serious health conditions, medical records were provided which showed that:

•  The Applicant has a history of serious cardiological issues. In 2003, the Applicant had a coronary artery bypass surgery. In 2009, the Applicant suffered a heart attack;

•  On 8 February 2017, the Applicant presented for a medical examination which noted the Applicant was distressed regarding his termination. The medical certificate further notes the Applicant had high blood pressure and a history of coronary artery disease;

•  On 10 February 2017, the Applicant was admitted to Cairns Hospital. The discharge summary lists the principal diagnosis as ‘NSTEMI’, which I understand to be a type of heart attack;

•  The Applicant has required ongoing medical support for his heart issues;

•  The Applicant suffered an ischaemic stroke in early 2019 that has left him with a speech impairment; and

•  The Applicant has been receiving psychological support for major depression, though the frequency of that support across the 3-year period is unclear. Although, it appears from the medical evidence that the Applicant sought frequent assistance in mid-2019.

[15] With respect to representative error, I note that the only materials before me are those provided by the Applicant. In these circumstances, a cautious approach should be adopted, though it appears to me there is likely representative error involved in the present matter. However, no explanation has been provided as to the gap between 2017 when the Applicant engaged with Shine Lawyers and 2020 when the Applicant sought an advice from Turner Freeman regarding professional negligence on the part of Shine Lawyers.

[16] Whilst I have the upmost sympathy for the serious and concerning health problems suffered by the Applicant, they to only explain a small portion of the 3-year delay. If the Applicant had engaged alternative legal advice in 2017, the outcome would likely be very different.

[17] Accordingly, I find this factor weighs against an extension of time in the present matter.

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

[18] The Applicant became aware of his dismissal when it took effect on 7 February 2020. This was acknowledged by the Applicant and confirmed by medical certificate of 8 February 2020. I consider this a neutral consideration in the present matter.

Action taken to dispute the dismissal – s.394(3)(c)

[19] I accept that the Applicant sought legal advice from Shine Lawyers following his dismissal. However, as outlined above, the Applicant appears to have ceased his engagement with the matter for some time. I find this matter weighs against an extension of time in the present matter.

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

[20] The delay in bringing the application is substantial. A long delay gives rise to a general presumption of prejudice. 4 A 3-year delay fits comfortably in the range where the Commission has held that a Respondent has suffered prejudice.5

[21] Further, as was noted by Marshall J in Brodie-Hanns v MTV Publishing Limited, 6 a lengthy delay may impact the recollection of the Respondent’s officers concerning the relevant events. Preparing a response to a claim regarding events that happened over 3 years ago is likely to involve extra time and resources on the part of the Respondent in investigating the events in question.

[22] Accordingly, this factor weighs against an extension of time in the present matter.

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

[23] In the present matter, there is little evidence before me regarding the merits of the matter. Further at the interlocutory stage, the evidence regarding the merits has not been tested.

[24] Accordingly, I am prepared to consider the merits of the application as a whole to be a neutral factor in the present matter.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

[25] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 7 I am not aware of any similar cases past or present. I consider this to be a neutral consideration in the present case.

Conclusion

[26] Whilst I sympathise with the Applicant, particularly in light of his ongoing health issues, an extension of time is a high hurdle to pass. For the reasons given above, I am not satisfied that there are exceptional circumstances taking into account the matters in s.394(3) of the Act such that an extension of time should be granted. The application must be dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722521>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].

 2   [2011] FWAFB 975.

 3   [2018] FWCFB 901.

 4   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54.

 5   (See, for example, Scott v Davies Automotive Equipment Pty Ltd[2016] FWC 4657, [35] (Lee C); Siu v Chinese Community Social Services Centre Inc[2016] FWC 4945, [18] (Lee C); Price v CDC Ballarat Pty Ltd[2020] FWC 3390, [16] (Lee C); Balagan v Australian Leisure and Hospitality Group Pty Ltd[2020] FWC 2757, [25] (Millhouse DP)).

 6 (1995) 67 IR 298, 299‒300.

 7   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].