Badoui Homsi v Linkforce Engineering Pty Ltd T/A Linkforce Engineering

[2017] FWC 1098

[2017] FWC 1098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Badoui Homsi
v
Linkforce Engineering Pty Ltd T/A Linkforce Engineering
(C2017/558)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] Mr Badoui Homsi alleged that the termination of his employment by Linkforce Engineering Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009 (Cth.). Linkforce denies the allegation.

[2] There is a dispute between the parties as to whether Mr Homsi was dismissed. Linkforce submitted that Mr Homsi resigned his employment on 17 August 2015. In his application form Mr Homsi said he was dismissed sometime in September 2016. In his outline of argument Mr Homsi said that he was dismissed in November 2016. At the hearing Mr Homsi advised that the reference to September in his application was in error.

[3] No matter which of these dates is chosen his general protections application lodged on 31 January 2017 was not made within 21 days of the date the dismissal took effect.

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[6] Mr Homsi was a casual employee who last worked for his employer on 10 August 2015. He gave evidence that he left work because he was stressed because of the conduct towards him by others. Mr Homsi said that he was in a dispute with his employer about his workers compensation claim. Linkforce put to Mr Homsi that he had resigned his employment in August 2015 and put to Mr Homsi copies of text messages which he accepted he had sent.

[7] The text messages said in part “I would like to resign”, I will hand in or medical/forms in asap hopefully by Tuesday … along with my resignation .. it’s the best choice for myself and linkforce,” “No hard feelings … I have a new employer so… its just best for my mental/health that I move onto a new company …thanks for everything mate”.

[8] These messages were undated. Mr Homsi did not accept that this meant he resigned his employment in 2015. He said he asked for leave and it was approved and was still on Linkforce’s books after 10 August.

[9] Mr Homsi said he was notified at the WorkCover tribunal in November 2016 that he was no longer employed. At the hearing he said that as part of the conciliation he asked for his job back but he was told by the conciliator that Linkforce would not have him back. He said he was unaware of his rights and he was unaware of the Fair Work Commission. He said that in his compensation matter he was legally represented and that he was not advised of his rights under the Fair Work Act 2009. However Mr Homsi said he sacked his lawyers in the middle of 2016. If that is the case given he says he was not dismissed until November 2016 it cannot be said his lawyers failed to advised him of his rights in relation to his dismissal as they were not his lawyers at that time.

[10] For the purpose of this decision I will assume that Mr Homsi’s employment was terminated in November 2016. It is therefore necessary to consider Mr Homsi’s explanation for the delay in lodging his application after this date.

[11] That Mr Homsi was unaware of the Fair Work Commission or his rights under the Act is not unusual. There was no evidence of any steps taken by Mr Homsi to find out what his rights were. A simple Google search of “discrimination” or “unfair dismissal” would bring up the Fair Work Commission’s website which provides information about employee rights.

[12] I am not satisfied that Mr Homsi has provided a reasonable explanation for the delay in lodging his claim.

[13] This weighs against a finding that there are exceptional circumstances.

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

[14] Mr Badoui says he was not aware of the dismissal until November 2016. Even if I accept his evidence he did not file within the 21 days after this date. This weighs against a finding that there are exceptional circumstances.

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

[15] There is no evidence that Mr Badoui did anything to dispute his dismissal.

[16] This weighs against a finding that there are exceptional circumstances.

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

[17] There was no evidence about any prejudice to Linkforce. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[18] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  3

[19] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[20] Here there is a dispute about whether Mr Homsi was dismissed. The undated documents relied upon by Linkforce support the submission that he resigned his employment. However that is not the end of the matter. Mr Homsi says he was dismissed because of his injuries and illness. He says he was the victim of racism. Even if he resigned it could be argued that this was a constructive dismissal.

[21] It was submitted by Linkforce that the merits were a neutral consideration. However no evidence was called by Linkforce to deny Mr Homsi’s allegations.

[22] In those circumstances I find that Mr Homsi has an arguable case and this weighs in favour of a finding of exceptional circumstances.

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

[23] There was no evidence that there were any persons in a similar position.

[24] I consider this to be a neutral consideration.

Conclusion

[25] I am not satisfied that there are exceptional circumstances. This is not a case where the merits of the claim are such that it outweighs the lack of a reasonable explanation for the delay. Accordingly Mr Homsi’s application for an extension of time is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M. Ivanovski for the Respondent.

Hearing details:

2016

Melbourne, by telephone:

22 February.

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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