Ali Mohamad v Neda Infrastructure Pty Ltd T/A Nick Neda Site Cleaning
[2012] FWA 8930
•18 OCTOBER 2012
[2012] FWA 8930 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ali Mohamad
v
Neda Infrastructure Pty Ltd T/A Nick Neda Site Cleaning
(U2012/11688)
COMMISSIONER GAY | MELBOURNE, 18 OCTOBER 2012 |
Termination of employment - extension of time.
[1] The following decision, now edited, was given at the conclusion of proceedings on 28 September 2012 in Melbourne. The application had come on for hearing at 11.40 am on that day when the applicant represented himself and Mr Nannery, solicitor, appeared by permission for Neda Infrastructure Pty Ltd T/A Nick Neda Site Cleaning (the respondent, Neda). The decision set out below was given at 1.35 pm, following a hearing as to the extension of time objection made by the respondent.
[2] It will be seen that at the outset of the decision given below, which followed a hearing of the extension of time objection and the objection raised that there had not been a termination of Mr Mohamad at the initiative of the employer, the applicant was asked whether he had written material that had not been handed up. As will become clear Mr Mohamad’s written work had been dealt with by his sister-in-law. Mr Mohamad advised that he had no written material dealing with the extension of time point.
[3] “This is an application for relief pursuant to s. 394 of the Fair Work Act 2009 (the Act) made by Mr Ali Mohamad (the applicant) in relation to his employment at Neda Infrastructure Pty Ltd. There are two objections made today as to jurisdiction and the matter comes on in relation to those objections. Directions were issued in respect thereof on 16 August. Mr Mohamad, I am conscious that you did not send any material in and I think you told me you had some material there that you brought along.
[4] MR MOHAMAD: Yes, I do.
[5] THE COMMISSIONER: Do you have anything there possibly done by your sister-in-law...
[6] MR MOHAMAD: Yes, I do.
[7] THE COMMISSIONER: ...possibly done by someone else, that relates to the extension of time point?
[8] MR MOHAMAD: No, not to the extension of time point.
[9] THE COMMISSIONER: Okay, all right, you can resume your seat. That being so, I am now going to turn to the first of the two jurisdictional points and the first point is the objection to jurisdiction that is made on the basis of the application being out of time.
[10] The parties are aware that in an application for unfair dismissal and remedy for unfair dismissal, that is s.394 of the Act, Fair Work Australia considers applications that are made within 14 days after the dismissal took effect. In this case there is a dispute about whether there was a termination at the initiative of the employer, that is whether there was a dismissal. That is the second of the jurisdictional points, but the point that I have decided I must hear first, is whether there is an application before me, because the application was not made within 14 days after a date that both sides say is the relevant date, and that is 4 July.
[11] Mr Mohamad, if I understand his position, says that there was a termination on that date and Mr Nedanovski says there was no termination on that date; that in fact Mr Mohamad relinquished the employment. He gave it up by going away, but he was not terminated. I don’t try and use any particular characterisation. So in my view the first of those jurisdictional points to be considered must be the extension of time point. If time is not extended there is no application before the tribunal and there is nothing for me to consider and no work to do. In my view the time point therefore has to come first.
[12] I have advised the parties that s.394(3) sets out the basis for extension of time and I am satisfied now that Mr Mohamad is full bottle on this and will be able to appreciate that it’s my duty to consider, firstly, the reason for the delay, when he first became aware of the dismissal, action taken by him to dispute the dismissal, prejudice to the employer, merits of the application. There have not been today full submissions on all those points. Mr Mohamad is self represented and as Mr Mohamad has told me a number of times he is not a lettered person. He’s not a bookish person. He’s lived his life in different ways and has told me that he can neither read nor write. Against him, of course, is Mr Nannery who is a bookish person. He is advantaged by perhaps the good fortune of life, which now sees him blundering through life with an LLB and so it is.
[13] Now, I have heard them both in their own way, that is Mr Mohamad the applicant and Mr Nannery, who I gave permission to appear - dealing with the point about whether time should be extended. It must be said of course that the principal position has to be, and is, in my view, that the parliamentary rule of 14 days has to be given effect. It is not to be lightly set aside because that would mean that the Parliament’s wishes that applications must – I will read the text of s.394 says: “The application must be made within 14 days after the dismissal took effect.” Then it says: “Or within such further period.”
[14] So that is the extension of time. I can extend it, but if I extend it too willingly, too freely, that would mean the 14 days is of no effect, because if people could disregard the 14 day rule and come in and sing the blues, without there being a satisfactory reason, having regard for the circumstances set out in s.394(3), then it would mean that the 14 days have been eroded, have been disregarded by me. But I won’t do that. It would not be right to do it.
[15] So I have earlier explained to the parties, and Mr Mohamad particularly, that I look to see whether, as the section says – and I’ll read it: “Fair Work Australia may allow a further period for the application to be made by a person under subsection (1) if I am satisfied that there are exceptional circumstances.”
[16] The authorities make it clear that “exceptional” does not mean that it has to be something quite extraordinary or out of this world but, rather, it has to be exceptional. It has to be a circumstance which is out of the ordinary course or unusual or special or uncommon, and I am reading now from the leading authority in this regard and it is a decision of his Honour Lawler VP presiding, over a Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, a well-known case, where it was said: “The ordinary meaning of “exceptional circumstances” requires consideration of all the circumstances.”
[17] The Full Bench in their judgment, said: “To be exceptional, circumstances must be out of the ordinary, out of the ordinary course, unusual, special or uncommon but need not be unique or unprecedented or very rare.”
[18] Now, you have got to think about that bit, but that’s the way in which it’s been construed: “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 are 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. 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”.
[19] So that is the way in which that phrase “exceptional circumstances” has been applied. I won’t go through the other influences set out at s.394(3)(b), (c), (d), (e) and (f). They have been dealt with in some considerable detail in today’s proceedings. Some regard has been had for them in the submissions put by Mr Nannery and by Mr Mohamad.
[20] I am of the view that on a fair reading of the transcript of today’s proceeding it will be appreciated that Fair Work Australia as presently constituted – that means me – has had close regard for the positions in this case, so I am not going to repeat everything that has been said. Mr Mohamad gave evidence about the circumstances surrounding the lodgement of his application and he was cross-examined by Mr Nannery, then submissions have been given and I have given Mr Mohamad some small level of assistance as I thought was necessary to make sure that he understood what he might put if he chose to address what were the various areas that I would be considering.
[21] I am not going to repeat everything that has been put. I know the parties are aware that I am aware of those facts. I am aware that the alleged termination took place on 4 July and Mr Mohamad says he was terminated, Mr Nedanovski says he departed. Mr Mohamad’s evidence, and I have accepted this evidence, is that he contacted Centrelink on the day and that is 4 July. It was a Wednesday. And either on Thursday 5 or Friday 6 July, he spoke by telephone with the registry here at Fair Work Australia and asked about making an application. The Fair Work Australia registry staff, whoever he spoke to, said that they would send the material to him and he would be able to make his application. I do not go any further in saying what they said because I do not know what they said and there was not any detailed evidence at all about that.
[22] I feel obliged to say that it can be taken that I would assume that a person who rang Fair Work Australia’s registry and said that they had been dismissed and sought advice would be treated in exactly the way Mr Mohamad indicates, that the material would be despatched. In my view it would be despatched speedily. It wouldn’t be despatched in a dilatory way or a slow way and equally, or for the very reason, that the registry officers of course are aware of the 14-day time limit. So in my view, and you can take it this is a view I hold, unless I was convinced to the contrary, the material would be despatched to such an applicant directly. It would go out. It’s a fundamental part of the job that the registry officers would try to do a very good job.
[23] In my view also they would advise an applicant of the time limit. I have got no evidence about that. I haven’t got a particular view about it except to say that that would be a completely normative thing for them to do and it would be very likely to be an unusual, possibly even exceptionally unusual thing for them not to do. Now, I have not got any direct evidence about what happened in this telephone call. I certainly think it would be very likely that such an applicant, or someone who is likely to become an applicant, would be advised of the need for them to make an application sooner rather than later.
[24] However, Mr Mohamad’s evidence in fact was that he received – there was some indecision attaching to this – he felt he’d received it two weeks later which would be Friday, 20 July. Now, as it turns out, the form signed by Mr Mohamad, but I understand made out, and I accept, made out by his sister-in-law, was dated Monday, 16 July. It is necessary to say that because Mr Mohamad isn’t a strong writer or reader he relied on the assistance given to him by his sister-in-law. It’s exceptionally likely that Mr Mohamad received the material, I would think, certainly by Wednesday of the previous week.
[25] In my view, this is a Melbourne posting, it would be very likely that by Tuesday the 10th, Wednesday the 11th, Mr Mohamad would have received the material, possibly by the 12th. I don’t speculate. That would be very, very likely. Certainly there is no doubt though it was in his hand on Monday the 16th. Mr Mohamad’s evidence wasn’t such as to recollect all the transactions of the sister-in-law, and how long he’d had it, but he recollected his sister-in-law, as she would, helping him with the form and filling it in and it being signed. And of course that creates some difficulties because the form does not arrive in the registry until 24 July which is the Tuesday of the following week.
[26] I have to assume then that, counting the Monday and signed on the day or starting that day, Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday – five or six days go by and then ultimately it’s mailed because it does arrive by the Tuesday of the following week, that is the 24th. The principal ground that I had to consider, because the s.394(3) subsections really weren’t dealt with in any great detail, but the gravamen of this case is the reason for the delay: Is there an explanation? Is the delay explained by an exceptional circumstance? Now, I’ve got to be satisfied that there are exceptional circumstances taking into account those things, the first of which is the reason for the delay. The reason for the delay, as I apprehend what Mr Mohamad said, was that he was taking care of his grandmother and I know that two weeks ago from today she was in hospital but also it seems she was unwell back in July and it may be over that time she was also from time to time hospitalised.
[27] I have got no really close evidence on that but that’s as I understand what Mr Mohamad said. He relies in a general sense on his grandmother’s ill health. So this is a case where if a person is dismissed, in his contention on Wednesday, 4 July, takes active measures, speaks to Centrelink on that very day and speaks to Fair Work Australia either on the next day or the day after that, 5 or 6 July, and receives the material. He’s likely to have done nothing for some days but he arranges for the sister-in-law to assist him, signs it on the Monday the 16th and then some nine days go by – eight days go by. I think Mr Mohamad may have said something about the envelope being in his car or being somewhere.
[28] As I understand Mr Mohamad’s position, I don’t know if it was ever put quite as precisely as this, he simply didn’t know about the time delay, but by the time he had the conversation with his sister-in-law he and his sister-in-law went through the various pieces of advice he had been sent from the Fair Work Australia registry. That material sets out the fact of the time limit. It has to be said the fact of not knowing about the 14 days is not of itself an explanation. It can’t be an explanation or it can’t be thought to be exceptional. It’s not an exceptional circumstance. Ignorance of these things simply isn’t taken as a reason to look behind or not apply these obligations.
[29] In this case to extend time I have to have in my view a reason of some specificity, a reason for it to be fair also in relation to Neda. It has to be a reason which hangs together. It has to be a sound reason and I must say I cannot think of what that reason is. If there was a sound reason which I thought could qualify under that definition of exceptional circumstance that I read out earlier, then naturally one might be inclined, in the case of an illiterate applicant living alone, as it seems the evidence is, with his grandmother who is ailing, to take a sympathetic ear. But I cannot be sympathetic in a general sense and allow such sympathy to overturn or overwhelm the obligation I have to apply the Act.
[30] Because I cannot find an exceptional circumstance, because essentially I cannot see what the true reason for the delay is, other than that insufficient care was taken by Mr Mohamad to pop the envelope in the mail for some five or six days at least, I find that there is no basis for me to extend the time. I have also looked at s.394(3)(b), (c), (d), (e) and (f). I make no finding in relation to the merits. I was not addressed on prejudice. The confounding subsection (f), fairness as between the person and other persons, I do not think has any particular application and subsection (c) really calls up any action taken by the person who disputes the dismissal. I am unaware of any relevant action that was taken. I was not addressed on that point.
[31] I decline to extend time because I think there was a delay which is quite unexplained over the week prior to the time that the form had been signed and, for that reason as I have just said, I do decline to extend time and I dismiss the application. I now adjourn.”
[32] An order to that effect is found in PR530389 dated 18 October 2012.
COMMISSIONER
Appearances:
A Mohamad the applicant.
P Nannery, by permission, for Neda Infrastructure Pty Ltd T/A Nick Neda
Site Cleaning.
Hearing details:
2012.
Melbourne:
September 28.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR530388>
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