Anthony Nassar v Karingal St Laurence Limited T/A Genu
[2022] FWC 1677
•5 JULY 2022
| [2022] FWC 1677 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Nassar
v
Karingal St Laurence Limited T/A Genu
(U2022/3823)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 JULY 2022 |
Application for an unfair dismissal remedy – date dismissal took effect – extension of time – discretionary considerations – extension granted
On 31 March 2022 Anthony Nassar (Mr Nassar or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Karingal St Laurence Limited trading as GenU (GenU, the employer or the respondent).
There is a dispute over the date the dismissal took effect. On Mr Nassar’s case, it was 10 March 2022. On GenU’s case it was 9 March 2022.
On Mr Nassar’s case the application was filed within time. On the employer’s case the application was filed one day outside the 21-day statutory time period for making unfair dismissal claims. GenU opposes an extension of time.
This decision deals with the jurisdictional issue as to whether the application is out of time and, if so, whether an extension should be granted.
The application was the subject of conciliation by a staff conciliator but did not resolve.
I issued directions on 17 June 2022.
The Commission received materials from both Mr Nassar and GenU in advance of the hearing.
I conducted a hearing on the jurisdictional issue on 28 June 2022.
Mr Nassar was self-represented.
The employer sought permission to be legally represented. This was opposed by Mr Nassar. I refused permission for the employer to be represented on the jurisdiction issue as I was not satisfied that a relevant factor in s 596 of the FW Act had been made out.[1] At the hearing the employer was represented by Ms McPherson, Senior People Operations Business Partner.
I heard evidence from two persons:
· Anthony Nassar (applicant)[2]; and
· Taylah Gaskin (Human Resources Business Partner, GenU)[3].
A statement from a former officer of GenU (Tenille Mau) was filed by the employer. Ms Mau was not made available to give sworn evidence on her statement or for cross examination. No prior notice of Ms Mau’s non-attendance was given to the Commission. I declined to admit Ms Mau’s unsigned, unsworn and untested statement into evidence other than to note it for identification as part of the employer’s materials. To do otherwise would not have afforded Mr Nassar procedural fairness, given that the statement refers to facts in dispute.
Following the hearing I reserved my decision.
Facts
A number of facts are in dispute, and in particular, what was said and done at a show cause meeting on 9 March 2022.
Most other facts are not in dispute.
In making findings of fact I have regard to the oral and documentary evidence.
Mr Nassar applied himself conscientiously to the task of giving evidence but had some difficulty with recall. His deeply felt sense of injustice manifest in some emotional outbursts on the contested evidence.
Ms Gaskin was calm and remained consistent in her recall and evidence.
I make findings on the disputed facts in the body of this decision.
GenU is a not-for-profit organisation working in the disability sector.
Mr Nassar was employed in April 2020 as Business Development Consultant. He enjoyed his work and had an affinity with the needs of disadvantaged and disabled persons.
In October 2021 GenU invited feedback from staff on a proposed COVID-19 vaccination policy, and in particular, a requirement that employees be vaccinated or provide proof of a medical contraindication.
On 19 October 2021 Mr Nassar wrote to GenU expressing concern at a vaccine mandate in light of his health conditions.
In November 2021 the policy was adopted requiring proof of vaccination within fourteen days from 14 January 2022 and 4 February 2022. Provision was made for exemption based upon proof of medical contraindication.
Mr Nassar provided a medical exemption with an expiry of January 2022.
On or about 24 January 2022 Mr Nassar undertook further tests (MRI) by his treating cardiologist in an endeavour to obtain a fresh medical exemption.
Whilst waiting for the test results, on 22 February 2022 Mr Nassar was stood down without pay. He was required to provide proof of vaccination or exemption by 8 March 2022, otherwise GenU may “commence a disciplinary process”[4].
A show cause meeting was notified and held (by zoom) on 9 March 2022. Mr Nassar attended as did Ms Gaskin, Ms Mau and a Senior HR Business Partner Ms Manser.
Mr Nassar was not vaccinated by the 9 March 2022 meeting, nor had he produced proof of a medical contraindication. He was awaiting MRI test results.
There is a dispute whether at that meeting Mr Nassar was told he would be (at a future time) terminated or was (had been) terminated. There is a dispute whether Mr Nassar told the employer that he would not on privacy grounds provide the medical results when they arrived. There is no dispute that Mr Nassar asked for his termination to be put in writing, although whether he did so rudely or professionally is in dispute. There is no dispute that Mr Nassar left the meeting in frustration before the meeting was due to conclude. I make findings on some of these disputed matters later in this decision.
Immediately following the meeting, Mr Nassar was angry, frustrated and shocked at how the meeting had proceeded. He contacted his cardiologist. He obtained a certificate dated 9 March 2022 to the effect that Mr Nassar was awaiting cardiac MRI results[5]. Mr Nassar could not recall if he then sent the certificate to the employer. Ms Gaskin’s evidence was that she had not seen the certificate until produced in these proceedings.
The termination letter was drafted by GenU. It was dated and signed by the Executive General Manager People and Culture, Ms Saba, the following day, 10 March 2022. It read:[6]
“10 March 2022
Private and Confidential
Mr Anthony Nassar
[address redacted]
[address redacted]
By registered post and email: [email address redacted]@gmail.com
Dear Anthony
TERMINATION OF YOUR EMPLOYMENT
I refer to the meeting you attended with Jacqueline Manser, Taylah Gaskin and Tennille Mau on 9 March 2022 to discuss your intentions with respect to your employment at genU in circumstances where you remain unvaccinated against COVID-19.
This correspondence confirms the outcome of that meeting. genU has made the decision to terminate your employment as a Business Development Consultant – Disability Employment Services at MatchWorks (Role) because of your refusal to follow its lawful and reasonable directions to be vaccinated against COVID-19.
The COVID-19 Vaccination Policy (Policy) applies to you given your Role. Under the Policy, you were required to do the following.
· Receive your first dose of a COVID-19 vaccine, or be able to provide evidence that an appointment to receive your first dose was made, by 14 January 2022.
· Complete your two-dose course of a COVID-19 vaccine by 4 February 2022.
· Provide evidence of your vaccination against COVID-19 to genU within 14 days of each date specified above i.e. by 28 January 2022 and 18 February 2022
genU did not receive proof that you had been vaccinated against COVID-19 or any evidence from a medical practitioner which indicated that you were unable to be vaccinated due to a medical contraindication.
During the meeting on 9 March 2022, you confirmed that you had not received at least one dose of a vaccination against COVID-19, nor did you intend to be vaccinated. You also did not provide proof that you had a medical exemption to being vaccinated against COVID-19. On this basis, your employment with genU has been terminated.
Termination of your employment
The termination of your employment is effective from 5.00pm on 9 March 2022.
genU will make payment of four (4) weeks’ salary in lieu of notice as well as your accrued but untaken annual and long service leave entitlements. The details of the payment will be provided to you via a final payslip, and the amounts will be transferred into your nominated bank account in the next pay run.
Arrangements
Please ensure that all genU property in your possession is returned to me via registered post by close of business on 18 March 2022. Your genU property includes, without limitation, your laptop, desktop screens, docking station, mobile phone, and any documents which came into your possession during your employment which contain information relating to genU’s operations and customers.
Once I have received your genU property and a copy of the receipt for the postage, you will be reimbursed for the postage in the next relevant pay run. At the same time, arrangements will also be made for your personal items at genU to be packed and returned to you. In the event that you do not return your genU property, or make arrangements for its return, by 18 March 2022, genU will withhold an amount equivalent to the value of your unreturned genU property from your final pay.
We understand this can be a difficult time. genU can provide you with access to its Employee Assistance Program facilitated by LifeWorks for up to four weeks after today’s date. LifeWorks can be contacted on 1300 361 008 or by visiting its website at wellbeing.lifeworks.com/au.
genU would like to express its sincere disappointment at this outcome. I thank you for your period of service and wish you the best for your future endeavours.
Yours sincerely
Zemeel Saba
Executive General Manager – People & Culture”
(emphasis in original)
Ms Gaskin sent the termination letter by email to Mr Nassar’s personal email address. This was the same email address by which the show cause letter had been sent. It was an email address Mr Nassar had advised GenU of and which was on GenU’s human resources records.
Mr Nassar says that he found the email in his junk folder on 15 March 2022 and that he read it that day and not earlier. No hard copy was received in the post despite the letter saying it would also be sent by registered post.
On 17 March 2022 Mr Nassar, believing he had been unfairly treated, sent GenU a letter[7]. The letter claimed unfair treatment, questioned GenU’s vaccination policy and its development, sought responses to a series of questions by no later than 4.00pm that day, and concluded by stating that if GenU “choose to follow through with its threat and terminate my employment” without meeting his requirements, “I will be taking matters further”.
Ms Saba of GenU received Mr Nassar’s letter. An email response was prepared, sent and received to the effect that a 4.00pm deadline was unreasonable and that a response would take “at least one week” and be sent “as soon as possible”.[8]
On 22 March 2022 a letter in response to Mr Nassar was prepared by GenU[9]. The response was emailed by Ms Gaskin. Ms Gaskin incorrectly keyed the email address (mis-spelling Mr Nassar’s surname)[10]. Mr Nassar did not receive the letter in response. The unreceived letter read:
“22 March 2022
Without prejudice save as to costs
Mr Anthony Nasser
[address redacted]
[address redacted]
By email: [email address redacted]
Dear Anthony
RESPONSE TO CORRESPONDENCE DATED 17 MARCH 2022
I refer to your correspondence to Ms Zemeel Saba, Executive General Manager – People & Culture, dated 17 March 2022.
genU terminated your employment effective 9 March 2022. A copy of the correspondence which confirms the termination of your employment is enclosed.
genU also denies any and all claims in your correspondence dated 17 March 2022 insofar as they relate to genU taking unlawful or improper action against you during your employment at genU.
You are reminded that genU has offered you access to its Employee Assistance Program facilitated by LifeWorks until 6 April 2022. LifeWorks can be contacted on 1300 361 008 or by visiting its website at wellbeing.lifeworks.com/au.
Yours sincerely
Helene Gordon
Acting Executive General Manager – People & Culture”
(emphasis in original)
In the two weeks following 17 March 2022, Mr Nassar waited for a response but received no response. He was aware of the rights of a dismissed employee to take unfair dismissal applications. He commenced researching his rights with the assistance of a friend. He accessed the Commission web site and read about how to file an unfair dismissal claim. He learned from reading the web site that there was a 21-day time limitation.
Believing he had been dismissed on 10 March 2022, Mr Nassar calculated twenty-one days from 10 March 2022. He calculated that he had until 31 March 2022 to file his application.
At some point prior to lodging his application Mr Nassar also telephoned the Commission enquiries line. He asked whether he was within time if he had been dismissed on 10 March 2022. He was told he was within time.
At 1.10pm on 10 March 2022 Mr Nassar filed his unfair dismissal application by email. His application claims that he was notified of his dismissal on 10 March 2022 and that his dismissal took effect on that date.
Submissions
Mr Nassar
Mr Nassar submits that his dismissal took effect on 10 March 2022 being the day his termination letter was dated and also the day it was signed and emailed to him.
Mr Nassar submits that he was not told that he was dismissed on 9 March 2022. He says that he was only told that he would be dismissed.
Mr Nassar submits that even if he was told on 9 March 2022 that he was dismissed, he was not told that his dismissal was to take effect that day. He submits that having been promised a letter, his dismissal could not have taken effect that day.
Mr Nassar submits that his application is therefore in time.
In the alternative, if his application is out of time Mr Nassar submits that an extension should be granted because he tried to resolve the issue internally with GenU, did not receive a reply to his letter of 17 March 2022, was waiting for that reply, and was not responsible for the administrative error made by Ms Gaskin on 22 March 2022 which meant he did not receive the reply. In any event, Mr Nassar says that the unreceived reply by the employer was brief and would not have dissuaded him from filing his claim.
Mr Nassar further submits that an extension of time should be granted because he has a deeply held sense of being wronged, a good case on merit and is entitled to his day in court.
GenU
The employer submits[11] that Mr Nassar was told on 9 March 2022 that he was dismissed and that the dismissal was with immediate effect. The employer submits that Mr Nassar knew the show cause meeting was a disciplinary process and had prior notice of what was required of him. The employer submits that Mr Nassar became angry and rude during the meeting and was not listening to what he was being told, leading to him unilaterally leaving the meeting. The employer says that Mr Nassar was told a letter would be sent and that the letter was a letter of confirmation, not a letter advising termination.
Thus, the employer says that the application is one day out of time.
The employer says that the circumstances are not exceptional such that time should be extended. The employer submits that Mr Nassar knew he had been dismissed, waited until the last day to file his application, got his dates wrong by operating under a presumption that was wrong, and could have filed earlier but did not do so.
The employer submits that the administrative error resulting in Mr Nassar not receiving its letter of 22 March 2022 was unfortunate (and for which it apologised) but made no difference because Mr Nassar maintained a belief he was unfairly dismissed and acknowledged in proceedings that the letter, had he received it, would have made no difference to his views about the dismissal.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Time for late lodgement can only be extended if Mr Nassar establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[12]
The test of “exceptional circumstances” establishes a “high hurdle”.[13] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[14]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[15]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[16]
When did Mr Nassar’s dismissal take effect?
Absent a contrary indication, an employee’s dismissal takes effect when the dismissal is communicated to the employee or when they have had a reasonable opportunity to become aware of the fact that they have been dismissed.[17]
Without making findings on all that was said or done at the 9 March 2022 meeting, I prefer the evidence of Ms Gaskin as to what Mr Nassar was told about his employment at the meeting on 9 March 2022. I do so for three reasons.
Firstly, the employer’s version is more plausible. By asking for his termination to be put in writing, Mr Nassar was clearly referring to the dismissal of which he had just been notified.
Secondly, Mr Nassar became emotional, angry and frustrated during the meeting, resulting in interjections and speaking rudely to Ms Manser (“okay sweetheart, why don’t you put that in writing to me then”[18]) and then leaving the meeting abruptly once he was told he was dismissed. It is plausible that Mr Nassar’s recall was clouded by his heightened state, particularly given Ms Gaskin’s evidence that Mr Nassar presented “sour behaviour” and was not attentive to what was being said.
Thirdly, Ms Gaskin made a contemporaneous file note of what was said at the meeting which was typed by her during the meeting. It is in evidence. The file note records “Jacki terminated his employment immediately”. The file note is generally consistent with Ms Gaskin’s oral evidence.
I also take into account the terms of the letter of 10 March 2022. The letter states:[19]
“This correspondence confirms the outcome of that meeting”. GenU has made the decision to terminate your employment…” (emphasis added)
It continues:
“The termination of your employment is effective from 5.00pm on 9 March 2022.” (emphasis added)
The letter is expressed as a “confirmation” of what was communicated the day prior. It refers to a termination in the present perfect tense (“has been”) and not the present tense. A letter in these terms sent the day following a meeting where Mr Nassar asked for the termination to be put in writing is consistent with the termination having been communicated and taken effect the day prior.
The submission by Mr Nassar that in his view Ms Manser had no authority to terminate his employment does not alter this conclusion. Whether the person who advised Mr Nassar that he was dismissed had authority to do so may be relevant to merit, but not jurisdiction. In any event, the evidence of Ms Gaskin was that Ms Manser had delegated authority.
For these reasons, I conclude that Mr Nassar’s termination took effect on 9 March 2022 when he was told by Ms Manser that he was dismissed effective immediately, or told words to that effect.
Accordingly, I proceed on the basis that Mr Nassar’s application is one day out of time.
An extension of time is required if the application is to proceed.
Should time be extended?
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[20]
The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[21]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[22]
The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[23]
Mr Nassar’s explanation for the delay is two-fold: firstly, he was waiting for a response to his letter of 17 March 2022 which did not arrive; and secondly, he had a genuine but mistaken belief that his dismissal took effect on 10 March 2022 and that he was filing within time.
Mr Nassar was waiting for a response to his letter of 17 March 2022. Although his letter was combative, he was entitled to a response and was promised a response. He was told that a response would be forthcoming in about a week. He was blameless in the reason why the response of 22 March 2022 was not received. It was caused by the employer’s administrative error.
Mr Nassar allowed two full weeks to pass after 17 March 2022 before filing his application. He wanted the employer to respond to his letter by 4.00pm the same day he sent it but he did not apply the same degree of urgency to his interests once no reply was received. Mr Nassar could have but did not contact the employer to ascertain why a reply had not been received.
Whilst it was reasonable for Mr Nassar to hold some hope of a reply during the following week, it ought to have been reasonably apparent by the second week (and in particular the days leading up to the delay period) that continued waiting was an increasingly forlorn hope.
I take into account that Mr Nassar preferred not to litigate his dismissal and wanted, notwithstanding the tone of his letter of 17 March 2022, to secure answers and arrive at an in-house resolution. He considered the employer’s reply to be the next step in securing those answers and finding that resolution.
It follows that waiting for the employer’s reply is only a somewhat reasonable explanation for the delay.
As to the second reason for delay, the evidence supports a finding that Mr Nassar had a genuine belief that his dismissal took effect on 10 March 2022 and that he was filing within time when he filed. Although Mr Nassar was somewhat tone-deaf to what he was being told on 9 March 2022, he acted on an incorrect presumption that his date of dismissal was the date of the letter confirming his dismissal.
The evidence supports a finding that Mr Nassar made a calculated decision to file on the twenty-first day after 10 March 2022. He could have, but chose not to, file a day earlier or in the days prior. In answer to questions from me, Mr Nassar accepted that it was not a coincidence that his application was filed on the twenty-first day[24]:
“DEPUTY PRESIDENT: If you wanted to make sure you made it on time, you…lodged on a day when you believed you were in time, is that correct?
MR NASSAR: That's correct.
DEPUTY PRESIDENT: OK, and so it's not just coincidence….on your understanding of the date you were dismissed…that it's lodged on the 21st day?
MR NASSSAR: No.
…
DEPUTY PRESIDENT: Right, so did you lodge it on the 31st of March because by that day, it was, as far as your calculations were concerned, the last day you had to lodge within time and you wanted to lodge within time and by that day you still did not have an answer from GenU?
MR NASSAR: Absolutely. Yes, that’s correct.
DEPUTY PRESIDENT: OK so lodging…on that day was a conscious act on your part to make sure that as far as you are concerned, you are lodging inside the 21 days?
MR NASSAR: Yes.”
Mr Nassar telephoned the Commission on an unspecified date prior to lodgement to check whether he was still within time to file. This weighs somewhat in Mr Nassar’s favour but not significantly so. It suggests that Mr Nassar was (at least on this unknown date) aware of the time limit and wanting to file within time. However, the answer he received was only as good as the information he provided. Given that he mistakenly advised that he was dismissed on 10 March, the affirmative answer received was correct.
I take into account that Mr Nassar did not seek out or obtain external advice from a specialist in the field to verify whether he was acting on a correct assumption or whether it was in his best interests to file earlier than the twenty-first day. He appears to have been acting on his own belief with the assistance of a friend.
A decision by a dismissed employee to leave it to the last minute and file on the twenty-first day and to do so late due to error on their part is not, without more, a convincing reason for the delay.
The observations of Deputy President Gostencnik in Shaw v Australia and New Zealand Banking Group Limited are apposite:[25]
“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
Whilst Mr Nassar was reasonably waiting for the employer to respond until a week prior to the statutory deadline expiring, his decision to wait until the final day before filing based on a genuine but erroneous belief as to the date his dismissal took effect weighs somewhat but only somewhat in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
I have found that Mr Nassar was told that he was dismissed with immediate effect on 9 March 2022 and was aware of his dismissal when he asked for it to be put in writing.
Whilst he was awaiting a dismissal letter, he was not unaware that he had been dismissed and why. He did not wish to believe it, but he was aware of it.
In these circumstances, I consider this a neutral factor.
Action taken to dispute dismissal (s 394(3)(c))
Mr Nassar had a clearly formed view that he had been unfairly treated when he abruptly left the dismissal meeting on 9 March 2022.
By writing to GenU on 17 March 2022 Mr Nassar took steps to obtain answers even though his correspondence was combative and included an unreasonable time frame for response.
Mr Nassar did indicate in this letter that he intended to take the matter further if he did not receive an acceptable reply, though he then did not apply the same degree of urgency to his interests as he had expected of the employer.
In this sense, GenU could not have been surprised Mr Nassar made an unfair dismissal claim.
This consideration weighs somewhat in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[26]
If an extension of time is granted, the claim would need to be further responded to by GenU, involving time and cost. That prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[27]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether Mr Nassar’s dismissal was for a valid reason and, aside from that question, whether Mr Nassar was afforded procedural fairness or the dismissal otherwise unfair.
Given that Mr Nassar was working with vulnerable persons, the employer has an arguable case of valid reason for requiring vaccination, and by conducting a show cause process there is also an arguable case of procedural fairness.
However, a significant issue on merit in this matter is whether it was reasonable for the employer to dismiss Mr Nassar in circumstances where he had previously secured a medical exemption (which had expired) and where he had informed the employer that he had been awaiting cardiac MRI results since 24 January 2022 to support a fresh exemption. Relevant to this consideration is whether Mr Nassar told the meeting on 9 March 2022 that he would refuse to provide the employer the results on the grounds of privacy. Mr Nassar strenuously disputes that he made such a claim. The employer’s evidence is that he did, though this is not recorded in Ms Gaskin’s notes. Fact-finding on this issue may turn on credit and plausibility.
Given this, and while neither case is unarguable, it is not open to express a provisional view on the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
No issues were raised as to fairness between persons in a similar position.
This is not a relevant factor.
Conclusion
The period of delay (one day) is short.
There is no particular prejudice to the employer should time be extended.
There would be disadvantage to Mr Nassar as he would not get his day in court to litigate the fairness of his dismissal. Whilst of obvious concern to Mr Nassar, this does not particularly weigh in favour of exceptional circumstances as it would be common that dismissed employees filing late and denied an extension of time would feel aggrieved at being unable to litigate the merits of their claim.
Mr Nassar’s case on merit is arguable but so too is the employer’s position. No provisional view can be expressed at this stage given the disputed facts.
Three factors weigh somewhat in favour of an extension being granted. Firstly, the employer knew that Mr Nassar was clearly dissatisfied with its decision. Secondly, in the fortnight before filing and in the hope of not having to litigate, Mr Nassar was waiting for an employer’s response to his letter of 17 March 2022. That response did not arrive because of error on the employer’s part. Thirdly, Mr Nassar genuinely wanted to file within time evidenced by the contact he made with the Commission to check if he was still in time.
There are no factors that weigh against an extension being granted, although waiting until the last day and doing so in error is not, of itself, an acceptable reason for delay. I take into account that Mr Nassar’s error was not an error of counting but an error of fact in circumstances where a promised letter confirming his termination was dated and received twenty-one days prior to lodgement.
In order to grant an extension of time I need to be satisfied that the circumstances are exceptional and, if exceptional, that discretion to extend time should be exercised.
Considered overall and on balance I am satisfied that the combination of circumstances constitute exceptional circumstances notwithstanding Mr Nassar’s fraught decision to wait until what he thought was the last available day to lodge his claim. The employer’s promise of sending a reply to his letter of 17 March 2022, his genuine desire to await that reply in order to avoid litigation, the employer’s error resulting in him not receiving their reply and his contact with the Commission to check on time frames tip the collective balance of considerations.
There are no discretionary reasons not to extend time given that no factors clearly weigh against doing so.
Disposition
Time is extended so as to permit application U2022/3823 to proceed. An order[28] to that effect is issued in conjunction with the publication of this decision.
The application will be remitted to the regional co-ordinator for further allocation and directions.
DEPUTY PRESIDENT
Appearances:
A Nassar, on his own behalf
B McPherson with T Gaskin, of and on behalf of, Karingal St Laurence Limited T/A Genu
Hearing details:
2022
Adelaide (by video)
28 June
[1] Decision on representation communicated to the parties by email 22 June 2022
[2] Al Statement (email 8 June 2022); A2 Further Statement (email 24 June 2022)
[3] R1
[4] TG8
[5] A4
[6] A7, TG11
[7] A3
[8] F2 Annexure B
[9] TG12
[10] TG12 page 1
[11] Outline of Argument 24 June 2022
[12] Smith v Canning Division of General Practice[2009] AIRC 959
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[14] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[15] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[16] For example, John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7], [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[17] Ayub v NSW Trains[2016] FWCFB 5500 at [35], [36]
[18] R1 paragraph 22
[19] A7
[20] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[21] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[22] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[23] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[24] Recording of hearing at 1:19:12-1:19:47; 1:21:18-1:21:54
[25] [2014] FWC 3903 at [28]
[26] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[27] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[28] PR743218
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