Bahram Mamani v Wheelton Investments Pty Ltd T/A Budget Car and Truck Rentals

[2021] FWC 5912

[2021] FWC 5912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bahram Mamani
v
Wheelton Investments Pty Ltd T/A Budget Car and Truck Rentals
(U2021/7686)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 27 SEPTEMBER 2021

Application for an unfair dismissal remedy – extension of time.

[1] Mr Bahram Mamani (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been unfairly dismissed from his employment with Budget Car and Truck Rental T/A Budget Rent Car.

[2] At the mention/directions hearing held before me on 6 September 2021 the Respondent confirmed its correct legal name as Wheelton Investments Pty Ltd T/A Budget Car and Truck Rental (Wheelton Investments, Respondent). I have utilised the discretion in s.586 of the Act to amend Mr Mamani’s application accordingly. It was also confirmed at the mention/directions hearing that Mr Mamani’s employment with Wheelton Investments was terminated with effect from 25 May 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The unfair dismissal application was lodged on 30 August 2021. The application was therefore filed 441days outside the 21 day period. Mr Mamani asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] The matter was listed for an extension of time hearing before me on 23 September 2021. The Respondent filed its submissions in accordance with the directions. Mr Mamani filed his submissions on 12 September 2021. The materials filed largely addressed the merits of the application and did not address all of the matters the Commission is required to consider when determining whether to extend the period within which an unfair dismissal application must be made.

[5] On 17 September 2021 further correspondence was sent to the parties directing them to provide a response to each of the matters I am required to take into account in determining whether there are exceptional circumstances pursuant to s.394(3) of the Act. Mr Mamani provided this additional material on 22 September 2021 and Wheelton Investments provided their response on 21 September 2021.

[6] The matter proceeded by way of determinative conference. Mr Mamani appeared and gave evidence on his own behalf. A Farsi interpreter was provided to assist Mr Mamani at the hearing. Mr Taranto, General Manager, represented Wheelton Investments and gave evidence on behalf of the Respondent. Ms McDine, CFO also gave evidence on behalf of the Respondent.

[7] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application and set out my consideration of each matter below.

Reason for the delay

[10] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 June 2020. The delay is the period commencing immediately after that time until 30 August 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[11] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4

[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[13] Mr Mamani was notified his employment was being terminated by reason of redundancy in a meeting with Mr Taranto that took place on 25 May 2020, during the meeting Mr Mamani understandably became quite upset. Mr Taranto offered for Mr Mamani to leave early that day and not work out his notice period which Mr Mamani agreed to. Mr Mamani’s evidence was that he understood during the meeting with Mr Taranto that his employment had been terminated.

[14] Mr Mamani confirmed he had received a Letter of Termination (Termination Letter) by email a couple of days after the dismissal took effect. The Termination Letter advised Mr Mamani that as a result of a re-structure throughout the business his position was no longer required and as a consequence his employment would end on 25 May 2020. The Termination Letter provided details of the notice period and the redundancy entitlements that Mr Mamani would receive. The letter also provided the contact details for the Fair Work Ombudsman should Mr Mamani wish to obtain further information about his entitlements.

[15] Mr Mamani provided several reasons for the delay in lodging his application. The first being that due to language barrier he did not understand the full meaning of the Termination Letter until recently. After filing further materials and during the hearing it became apparent that whilst Mr Mamani understood that his employment had been terminated during the meeting that took place on 25 May 2020, he didn’t understand that his role had been made redundant through no fault of his own and his termination was not due to his performance. Mr Mamani thought he had been “sacked”. Mr Mamani submits that he had never in his employment history been made redundant and had no familiarity with this concept. Mr Mamani submissions provided that he did not fully understand the term redundancy however he did understand that his employer (the Respondent) had terminated his employment.

[16] During proceedings Mr Mamani gave evidence that he understood at the meeting held on 25 May 2020 that his employment had been terminated effective that day and he no longer had a role with the Respondent. It is not in contention that Mr Mamani and Mr Taranto held a telephone discussion a few days after the dismissal took effect. During the telephone discussion Mr Mamani pleaded for his job back however Mr Taranto explained due to Covid-19 the business was suffering a downturn and was unable to offer him a position at that time. Some-time shortly after his dismissal Mr Mamani contacted a manager at the Campbellfield site and requested to be provided with alternative employment. Mr Mamani says that the Campbellfield manager said he would try to help him however he did not promise him a job. Mr Mamani did not hear back from the Campbellfield manager and made no other attempts to contact him either.

[17] Mr Mamani gave evidence that he contacted the Fair Work Commission approximately a month and a half after he was dismissed from his employment. He made inquiries as to what options were available. Mr Mamani says he did not make an application at that time because he did not hold any confidence that “anything would come of it” if he did pursue the matter.

[18] Mr Mamani submits that his living arrangements and familial circumstances also contributed to the delay. During the hearing Mr Mamani confirmed he lives with his younger brother and all his other family members live in Iran. In 2020 Iran’s struggle with COVID-19 had hit the headlines and his elderly parents had fallen ill and he says he was seriously concerned for their health for a prolonged period of time.

[19] Mr Mamani submits the termination took place at a time that Australia was grappling with COVID-19 and this was a further reason for the delay. He submits the lockdowns, restricted movement and fear of a viral sickness and uncertainty of the future had a paralysing impact on him that he was unable to comprehend what was happening in life, let alone in his employment. However, Mr Mamani continued to work as an Uber driver and in September 2020 Mr Mamani spoke with his accountant and attempted to make an application for JobKeeper payments. Mr Mamani says he was advised by his accountant that an application had already been made in his name and that he would need to resolve that matter before he could have his application progressed further. After his dismissal Mr Mamani also obtained alternative employment on a casual basis and has been working approximately 38 hours per week for the past year. Therefore, I do not accept Mr Mamani’s submission that the COVID-19 situation inhibited his ability to make his application at an earlier time.

[20] Mr Mamani provides no other reasons for the substantial delay in making his application. Whilst I acknowledge Mr Mamani’s concerns for the welfare of his parents and that he was experiencing some difficulties, I do not consider those circumstances to be exceptional. I do not accept that Mr Mamani’s concerns for his parents accompanied by his living arrangements and the stress he was experiencing after his dismissal prevented him from making his application within the prescribed period provided for by the Act. None of the aforementioned reasons relied on by Mr Mamani prevented him from continuing his employment as an Uber driver, obtaining alternative employment or seeking advice from his accountant about his JobKeeper eligibility. It stands to reason that if Mr Mamani was capable of maintaining employment and making inquiries about his finances he was also capable of making his application at an earlier time however because he did not think his application would be successful he chose not to do so.

[21] Mr Mamani has not provided a reasonable or acceptable explanation for the delay in lodging his unfair dismissal application out of time. The absence of an acceptable explanation as to why Mr Mamani lodged his application out of time weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[22] Mr Mamani’s employment was terminated by reason of redundancy. Mr Mamani was notified of his termination on 25 May 2021 and was provided with a termination letter by email in the days following confirming his employment ended on 25 May 2020. Therefore, Mr Mamani had the full period of 21 days to lodge the unfair dismissal application.

[23] While not disputing he was notified of his dismissal on 25 May 2021, Mr Mamani contends he only recently understood the full meaning of the Termination Letter and was not aware at the time of his dismissal that he had been made redundant.

[24] Although Mr Mamani did not understand that he’d been dismissed for reasons of redundancy, this does not alter the fact that Mr Mamani was notified of the dismissal and understood he was being dismissed on the same day that it took effect. Further, approximately a month and a half after being dismissed Mr Mamani contacted the Commission seeking advice. I therefore find this weighs against the granting of an extension of time.

Action taken to dispute the dismissal

[25] Mr Mamani’s evidence is that after receiving the Termination Letter he contacted the Respondent asking to be able to return to his employment however Mr Taranto declined to provide him with alternative employment. Mr Mamani also contacted the manager at the Campbellfield site in an attempt to obtain a role with the Respondent however he did not hear back from the manager. Although I accept Mr Mamani made attempts to obtain a role with the Respondent after his dismissal took effect, these were not steps taken to dispute the dismissal directly with the Respondent. Therefore, I find this to be a neutral consideration.

Prejudice to the employer

[26] Mr Taranto’s evidence was that he did not think the Respondent had suffered any prejudice caused by the delay in the making of the application. Ms McDine submitted that if the application was to be granted there was potential for a financial implication that would cause the Respondent to suffer some prejudice.

[27] The prejudice relied on by Ms McDine cannot reasonably be quantified if an extension of time is granted because it relates more to the determination of the merits of the application which is yet to be considered. Although I accept that there may be some prejudice to the Respondent caused by the delay in the making of Mr Mamani’s application, it would not significantly alter my conclusion below and therefore I consider that prejudice is a neutral factor.

Merits of the application

[28] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. I have considered the submissions and evidence of the parties and I do not intend to repeat those submission and evidence in full here.

[29] The Respondent submits that Mr Mamani was made redundant on 25 May 2020 due to a downfall in business in April 2020 as a result of Government lockdowns due to COVID-19. It submits that as Mr Mamani is on a temporary protection visa (due to expire in July 2022) he was not eligible for JobKeeper and they did not have any available work for him.

[30] Mr Taranto’s evidence is that during the initial lockdown periods the business faced a downturn in business and they had to make a decision to restructure the operations. Mr Taranto says a number of employees were made redundant including Mr Mamani. Shortly after Mr Mamani was made redundant the mechanic became ill and had to take an extended period of leave. During that period the Respondent outsourced his role and did not offer it to Mr Mamani because he is not a qualified mechanic and therefore he could not perform the work of the mechanic or be left to work unsupervised.

[31] Mr Mamani submits that at the time of being made redundant the Respondent was still inviting employees to refer family or friends for employment. He also submits in the months prior to being made redundant he had received emails from the Respondent assuring employees that their jobs were safe. Mr Mamani submits he was made redundant because he was not eligible to receive the JobKeeper payments.

[32] Mr Taranto submits at the time of being made redundant Mr Mamani was not offered an alternative role because there were no other roles available. Apart from Mr Mamani’s initial inquiries they had not heard from him until Ms McDine made contact on 1 September 2021. During her conversation with Mr Mamani, Ms McDine offered him a role as a detailer at another one of the Respondent’s branches. Mr Mamani’s evidence was that he declined the role because it was equivalent to offering a schoolteacher a dishwashers’ role.

[33] Whilst the facts of the dismissal seem largely uncontested on the basis of the limited materials before me it is not possible to make any firm or detailed assessment of the merits, therefore I consider this to be a neutral factor.

Fairness as between the person and other persons in a similar position

[34] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[35] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion

[36] Having considered all of the factors set out in s 394(3), and all of the matters raised by Mr Mamani, I am not satisfied that the requisite exceptional circumstances exist. There is not exceptional or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[37] Accordingly, the application is dismissed. An order 6 to this effect will accompany this decision.

COMMISSIONER

Appearances:

B Mamani on his own behalf
M Taranto from Wheelton Investments Pty Ltd T/A Budget Car and Truck Rentals

Hearing details:

2021.
Melbourne (by video via Microsoft Teams):
23 September.

Printed by authority of the Commonwealth Government Printer

<PR733788>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP)

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]

 5   Ibid at [40]

 6   PR733789