Ali Badra v Woolworths Group Limited
[2022] FWC 2359
•6 SEPTEMBER 2022
| [2022] FWC 2359 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ali Badra
v
Woolworths Group Limited
(U2022/6712)
| COMMISSIONER MCKINNON | SYDNEY, 6 SEPTEMBER 2022 |
Application for an unfair dismissal remedy– application filed out of time – whether additional time should be allowed
Mr Ali Badra was employed by Woolworths Group Ltd from 12 August 2019 until 17 May 2022, having worked continuously before that time as a labour hire employee for Woolworths from 2012. On 29 June 2022, Mr Badra applied for an unfair dismissal remedy. The application was filed 22 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Mr Badra to make the application to the Commission.
I have decided not to allow an additional period for Mr Badra to make the application. The application will be dismissed. These are my reasons.
Extension of time
Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
The matters to be taken into account when deciding whether to grant additional time are set out in s.394(3) of the Act. These are:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Mr Badra submits that he was deeply affected by the death of his mother in Lebanon on 6 March 2022 after spending 29 days by her side. He returned to Australia from Lebanon on 17 March 2022 and returned to work on 11 April 2022, working three days per week. On 19 April 2022, he attended a meeting with Woolworths about the issues that ultimately led to his dismissal. He then continued working until 17 May 2022, when he met again with Woolworths in person and was dismissed.
On 18 May 2022, Mr Badra had surgery. He was discharged the same day, and while he could walk after the surgery, he was in a lot of pain. This meant he was not able to help at home, including with his daughter who has special needs. Instead, the burden of caring fell to his wife, Mrs Wahiba Jebara.
Approximately one week after the dismissal, Mr Badra spoke to his union representative. He was told about the option of making an unfair dismissal claim. He was quite stressed and not in a good position to think about it. He was also receiving mental health care. English is his second language and he asked Mrs Jebara to help him. Mr Badra says he was not told about the time limit to apply for unfair dismissal claim, but I do not accept this submission. This is because Mrs Jebara knew about the “timeline to apply” about 2-3 days before the expiry of the 21‑day timeframe.
The issue was not knowledge, but time. Mrs Jebara had too much on her plate to prioritise the making of an unfair dismissal claim while she was caring for her husband and four children. She also thought making an unfair dismissal claim would be an arduous process requiring the submission of evidence. When Mrs Jebara finally looked into making the claim on 28 June 2022, she realised the application only took about 20 minutes. She completed the application and arranged for Mr Badra to sign it. The application form was then submitted at 1.05am on 29 June 2022.
I accept that the death of a loved one is an exceptional circumstance, and that Mr Badra was deeply affected by the illness and then death of his mother. The link between this experience and the filing delay is less clear. By the time of dismissal, Mr Badra had been able to attend and perform work for more than five weeks. This included scanning and accounting for stock and completing paperwork. He had attended two meetings about the termination of his employment. In other words, he had a level of functionality suggestive of the capacity to make an application to the Commission within the prescribed 21‑day period.
Similarly, while I accept that the day surgery on 18 May 2022 caused Mr Badra a lot of pain, I am not persuaded that the surgery prevented Mr Badra from making the application to the Commission after the first week post-dismissal. By that time, Mr Badra had been able to speak with his union representative. He had been told about the option of an unfair dismissal claim. He had access to a computer and internet at home. Although his native language is not English, he is able to understand basic English. There is information on the Commission’s website about how to access an interpreter when asking questions of the Commission about its forms or processes. This can be done over the phone.
It is regrettably unexceptional that Mrs Jebara had too much on her plate after the dismissal of Mr Badra. Mrs Jebara has demanding family responsibilities at the best of times. Making an unfair dismissal claim for Mr Badra was not a priority and sounded like a lot of work. When she finally found time to sit down and look into the application, she realised the application was straightforward and took steps to apply to the Commission on behalf of Mr Badra straight away. By then, however, the application was already three weeks late.
Whether the person first became aware of the dismissal after it had taken effect: Mr Badra first became aware of the dismissal when it took effect on 17 May 2022.
Any action taken by the person to dispute the dismissal: Mr Badra did not take any steps to dispute the dismissal other than by the filing of his application to the Commission on 29 June 2022.
Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Woolworths if the application proceeds.
Merits of the application: Mr Badra’s case is not strong. He was dismissed because he was unable to perform the inherent requirements of his role, after having been on restricted duties for more than two years. The materials disclose what appears to have been a procedurally fair process and a decision informed by medical advice about Mr Badra’s condition and his ability to return to pre-injury duties.
Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.
Conclusion
While I have found exceptional circumstances in relation to the death of Mr Badra’s mother, I am not persuaded of the link between this event and the late application, except to the extent that Mr Badra was still experiencing grief. Similarly, and allowing for a reasonable period of recovery time, I am not persuaded that because of the surgery Mr Badra underwent on 18 May 2022, he was somehow prevented from making his application on time.
Mr Badra did not take reasonable and timely steps to dispute the dismissal in the weeks that followed. He knew about the dismissal on the day that it occurred and he knew about the option of an unfair dismissal claim one week later. The dismissal was not unexpected in the sense that it had been foreshadowed by Woolworths for months. Mr Badra has access to a phone and a computer at home. Other than his family and caring responsibilities - which in any event fell to his wife - there is no evidence of other immediate or significant demands on Mr Badra’s time after the dismissal. While I accept that language barriers may have had a role to play in the delay, this is a common occurrence in modern Australia. Interpreters are available to help individuals who want to apply to the Commission, including with filling out forms.
The merits of Mr Badra’s application are not strong and none of the other relevant considerations tip the balance in favour of a grant of additional time. The issues of prejudice to Woolworths and fairness as between individuals are neutral considerations.
On balance, I am not persuaded that this is an appropriate case where additional time should be allowed to Mr Badra to make his application to the Commission. The application is dismissed.
COMMISSIONER
Appearances:
A Badra on his own behalf.
J Zadel on behalf of the Respondent.
Hearing details:
2022.
Sydney (by Video):
September 5.
[1] [2011] 203 IR 1 at [13].
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