Bessymon Skaria v St Peters & St Pauls Jacobite Syrian Orthodox Church Adelaide

[2019] FWC 7159

[2019] FWC 7159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bessymon Skaria
v
St Peters & St Pauls Jacobite Syrian Orthodox Church Adelaide
(U2019/5566)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 16 OCTOBER 2019

Application for an unfair dismissal remedy – employment as orthodox priest - jurisdictional issues – whether dismissed – date dismissal took effect - extension of time – no exceptional circumstances – application dismissed

[1] Rev. Fr. Bessymon Skaria (Mr Skaria or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by the St Peters & St Pauls Jacobite Syrian Orthodox Church (the Church or the Respondent Employer). He claims to have been dismissed on 15 March 2019 effective from 1 May 2019.

[2] His application was filed with the Commission on 20 May 2019.

[3] There is a dispute about the date Mr Skaria’s employment ceased and whether he was dismissed. The Respondent Employer says that Mr Skaria was transferred to India as a priest and not dismissed. In the alternative, it says that he was dismissed by decision of the parish on 17 February 2019 effective from 23 February 2019, or in the further alternative by decision of the Metropolitan Bishop on 15 March 2019 effective 1 April 2019.

[4] The Church further submits that whether the effective date of dismissal was 23 February 2019 or 1 April 2019, Mr Skaria’s application is out of time and that no exceptional circumstances exist so as to warrant an extension of time.

[5] The Church also raises a third jurisdictional issue: that, as a priest, Mr Skaria was not an employee of the Church.

[6] If Mr Skaria was dismissed with an effective date of 1 May 2019 (as he claims), his application is not out of time. If, however, Mr Skaria if found to have been dismissed but with an effective date of 23 February 2019 or 1 April 2019 (as the Respondent Employer contends) then his application is out of time by either 58 days or 28 days. This is because the FW Act requires applications of this type to be filed within 21 days of an alleged dismissal taking effect.

[7] For reasons that follow, I find that Mr Skaria was dismissed by the Church Employer with an effective date of termination of 1 April 2019, making the application twenty eight days out of time. The application can only proceed if an extension of time is granted.

[8] The application was the subject of conciliation by a Commission-appointed conciliator on 30 July 2019. It did not resolve. It was referred to me for hearing and determination.

[9] One observation concerning the filing date of Mr Skaria’s application is pertinent. The initiating application (F1 dated 20 May 2019) was filed with the Commission on 20 May 2019. On 21 May 2019 Commission administrative staff drew to Mr Skaria’s attention that a number of parts of his application were incomplete. On 5 June 2019 Mr Skaria resubmitted the F1 application (still dated 20 May) in a corrected form, with additional attachments.

[10] Both parties before me proceeded on the basis that Mr Skaria made his application on 20 May 2019. That is the initiating application that is before me, as corrected by him on 5 June. This is the correct approach given that Mr Skaria at no time withdrew his 20 May 2019 application and given the minimalist nature of the corrections made. I proceed on that basis.

[11] To determine whether an extension of time is required, the Commission needs to determine the date Mr Skaria’s dismissal took effect. To determine that question, the Commission needs to determine whether Mr Skaria was dismissed. Accordingly, on 14 August 2019 I directed that two of the three jurisdictional issues (whether Mr Skaria was dismissed and the extension of time issue) be dealt with by determinative conference on 25 September 2019. The third jurisdictional issue (whether Mr Skaria was an employee) would be dealt with in a merits and remedy hearing, if the matter proceeded beyond the first two jurisdictional issues.

[12] I directed Mr Skaria and the Church to file materials in advance of the directions hearing. Both did so.

[13] Mr Skaria relocated to India following his alleged dismissal. He has no current visa permitting re-entry to Australia. He requested permission to participate in the hearing by telephone. I granted that permission. I conducted the hearing on 25 September 2019. At the hearing’s conclusion I reserved my decision, which I now deliver.

[14] Mr Skaria was self-represented at the hearing. He did so by telephone from India. His native tongue is an Indian dialect, Malayalam. He requested, and with the Commission’s permission, was assisted by a Malayalam interpreter.

[15] The Respondent Employer was represented by Mr Binu Mathew, Secretary of the St Peters & St Pauls Jacobite Syrian Orthodox Church and assisted by Vice-President of the Church management committee, Mr Eshibu Paulose.

[16] Mr Skaria, Mr Mathew and Mr Paulose each gave evidence at the hearing. Consistent with my responsibilities as an independent officer of the Commission, I provided a measure of guidance and assistance to both parties with respect to obtaining their evidence in chief and the identification of documents on which they relied.

[17] Each of the witnesses gave their evidence conscientiously. Although most of the factual matters are agreed, some relevant facts are in dispute particularly aspects of conversations between Mr Skaria and Mr Mathew. Those disputes are largely the product of effluxion of time and inexact recollections or differing inferences drawn from the same events, not creditworthiness.

[18] I make specific findings on disputed evidence based on the manner in which evidence was given at the hearing, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence and the inherent plausibility of versions of events.

The Facts

[19] I make the following findings.

[20] The St Peters & St Pauls Jacobite Syrian Orthodox Church is a parish of the Jacobite Syrian Orthodox Church, a Christian orthodox denomination based in the suburbs of Adelaide (at Woodville West). The Church is overseen by a Metropolitan Bishop who is the Patriarchal Vicar of the Churches and Congregations in Australia, New Zealand, Singapore and Malaysia. At relevant times, the Metropolitan Bishop of the Church was His Excellency Yuhanon Mor Meletheose, based in Kerala, India.

[21] The day to day business of the St Peters & St Pauls Jacobite Syrian Orthodox Church at Woodville West is managed by a management committee. Half yearly general meetings of parish members are held. A priest ministers to the Church and its congregation including through the conduct of mass (Holy Qurbana), ministry on special reverence days and the provision of pastoral care within the parish.

[22] Mr Skaria is a citizen and resident of Kerala, India. He is an ordained priest of the Jacobite Syrian Orthodox Church. He has served at least two periods as a priest in Australia. Appointments as a priest at a particular Church are made by the Metropolitan Bishop in consultation with the local parish. Periods of appointment are for approximately a two year term. The local church sponsors a Temporary Activity Visa for that purpose.

[23] Between April 2015 and April 2017 Mr Skaria was appointed as priest at the St Mary’s Jacobite Syrian Orthodox Church in Adelaide (in Cowandilla).

[24] On 22 August 2017 the Metropolitan Bishop announced that Mr Skaria would be appointed to the St Peters & St Pauls Jacobite Syrian Orthodox Church (in Woodville West, Adelaide) from 1 September 2017. 1

[25] After a short delay, Mr Skaria commenced working for the Church from November 2017.

[26] The Church sponsored a fresh two-year Temporary Activity Visa for Mr Skaria. The visa application prepared by a migration agent on behalf of the Church 2 described Mr Skaria as working in “employment” as a “Minister of Religion”. It set out remuneration package details (wages and allowances) pertaining to his work. It also indicated that Mr Skaria was provided private health insurance (via BUPA) whilst working under the visa terms.

[27] Mr Skaria’s service proceeded in the ordinary course until early 2019 when disagreements arose between Mr Skaria and the management committee concerning his absence from the parish and his remuneration.

[28] Communication between Mr Skaria and members of the management committee was commonly conducted in person, via email or text, or by a WhatsApp messenger service that was accessible to the priest and members of the management committee.

[29] On 13 January 2019 Mr Skaria spoke informally to the Church Secretary, Mr Mathew. Mr Skaria told Mr Mathew that he was suffering back pain and would require treatment.

[30] On 24 January 2019 Mr Skaria advised members of the management committee via a WhatsApp message that he would be going to India for back treatment. He did not seek permission to do so, but informed the management committee that he was intending to do so. His intention was not contested by the management committee.

[31] On 28 January 2019, four days later, Mr Skaria left Adelaide and travelled to India for treatment on his back. Mr Skaria advised the management committee that he intended to return on 8 February 2019 in order to minister Holy Qurbana at the parish day on 9 February 2019.

[32] On 5 February 2019 (Australian time, 4 February in India) Mr Skaria advised Mr Mathew (by leaving a voice message 3) that he will not be returning on 8 February 2019 and not before 24 February 2019. Mr Mathew asked Mr Skaria to advise more specifically when he would be returning. Mr Skaria responded further on 17 February 2019 when again asked by Mr Mathew.

[33] At short notice, and after a national search, the Church found a temporary replacement priest who was flown from Sydney to Adelaide to minister Holy Qurbana at the parish day on 9 February 2019, at expense to the Church.

[34] On 17 February 2019 Mr Mathew sent a text message to Mr Skaria seeking advice on when he was to return. 4 Mr Skaria replied that day saying doctors had advised him not to travel before 3 March 2019 but that he expected to be back for Holy Qurbana on 9 March 2019.5

[35] On 17 February 2019 the Church half yearly general meeting was conducted. A decision was taken by the general meeting not to continue with Mr Skaria as priest in light of certain alleged concerns associated with his communication and his ministry. The general meeting proposed that the management committee select a new priest from a three priest panel to be provided by the Metropolitan Bishop. The unconfirmed meeting minutes record the decision as follows:

“The General Body decided to request to our Metropolitan to appoint a new Vicar.” 6

[36] On 18 February 2019 Mr Mathew on behalf of the Church wrote (by email) to the Metropolitan Bishop advising of the decision of the Church general meeting of 17 February 2019 and “humbly request immediate intervention in this matter”. 7

[37] On 19 February 2019 the Church emailed Mr Skaria minutes of the 17 February 2019 general meeting.

[38] On 23 February 2019 Mr Mathew on behalf of the Church management committee advised Mr Skaria via the WhatsApp messenger service of the decision of 17 February 2019 to appoint new priest as follows: 8

“Respected Priest,

The Half Yearly General Body meeting on 17 February 2019, had decided to appoint a new vicar and terminate the existing vicar from today onwards. So The Managing Committee officially inform you that, no need to comeback to the parish to celebrate the Holy Qurbono. All your personal belongings will pack and send to you. If you need any clarification please contact Bishop.

On behalf of
St.peters and St.pauls Jacobite Syrian church, Adelaide
Managing Committee
Secretary
Binu Mathew”

[39] On 24 February 2019 Mr Skaria was removed from the Church WhatsApp messenger service.

[40] On 9 March 2019 a telephone conversation was held between Mr Skaria and the Church management committee. 9 Mr Mathew and a number of members of the management committee apologised to Mr Skaria for making and communicating the decision of 17 February 2019 before it was made or ratified by the Metropolitan Bishop. Some members suggested to Mr Skaria that he return from India and resume as priest in light of the apology. Mr Skaria raised his view that the Church had not paid him an appropriate remuneration and that he wanted, in the first instance, “arrears cleared”. A disagreement then arose over whether any arrears were owed. No agreement was reached on his return.

[41] On 15 March 2019 the Metropolitan Bishop wrote to the Church 10 advising that “we hereby relieve him (Mr Skaria) from the position of vicar of that church” and advising of a replacement vicar “effective from 1 April 2019”.

[42] On 6 April 2019 Mr Skaria sent a letter to the Church 11 claiming disputed entitlements (salary, allowances and superannuation) and threatening legal action to recover the same “via fare (sic) work commission”.

[43] On or about 6 April 2019 and during the month of April and May 2019 Mr Skaria sought and obtained advice about his legal and industrial rights from friends and associates he believed had knowledge of Australian employment law. 12

[44] On 20 April 2019 Mr Skaria returned to Australia from India. This was his first return to Australia since his departure on 28 January 2019. He travelled to Melbourne and then Sydney. He did not travel to Adelaide or the Adelaide parish.

[45] On 24 April 2019 Mr Skaria returned to India.

[46] On 8 May 2019 Mr Skaria sent an email to the Church 13 advising that he will proceed with legal action if his disputed past entitlements are not paid within 48 hours and that he will “submit this complaint to Fair Work Commission Australia”. He enclosed a F2 “from my solicitor”.

[47] On 10 May 2019 the Church replied to Mr Skaria claiming that no arrears were owed. 14

[48] On 20 May 2019 Mr Skaria commenced these proceedings in the Fair Work Commission.

[49] On 21 May 2019 the Church replied by letter to Mr Skaria’s emails of 8 and 10 May 2019 repeating its claim that all dues had been paid.

Consideration

Was Mr Skaria dismissed, and if so when did the dismissal take effect?

[50] The Respondent Employer submits that Mr Skaria was transferred to India as a priest and not dismissed. Mr Skaria submits that he was dismissed by decision of the general meeting of the Church on 18 February 2019 or in the alternative by the notice issued by the Metropolitan Bishop of 15 March 2019.

[51] I do not accept the Respondent Employer’s submission that Mr Skaria was not dismissed. There is no evidence before me that Mr Skaria was simply transferred in his duties as a priest from one parish to another in either Australia or India. He returned to Australia for four days in April 2019 (20 to 24 April) to make inquiries of parishes in Melbourne and Sydney as to whether alternate work as a priest was available in the country. When none was offered to him, he returned to India. The overwhelming weight of evidence is that Mr Skaria was engaged to work as a priest specifically at the St Peters & St Pauls Jacobite Syrian Orthodox Church in Adelaide for a fixed term (of two years), after which a new and separate appointment would need to be made by the Metropolitan Bishop with the support of a local parish if he was to continue his work as a priest.

[52] Although the St Peters & St Pauls Jacobite Syrian Orthodox Church in Adelaide purported to replace Mr Skaria as its priest on 17 February 2019 I do not consider that act, in fact or at law, to have been the act of dismissal, for the following reasons.

[53] Firstly, the decision of the general body on 17 February 2019 to replace the priest was, in the terms of the minutes of meeting and as acknowledged in the evidence of Mr Mathew, a “request” to the Metropolitan Bishop. The minutes expressly said as much. 15 More relevantly, the communication by the Church to the Metropolitan Bishop on 18 February 2019 said as follows:16

“The General Body requested a 3 priest panel and the Managing Committee will select a priest from the Panel. We humbly request your immediate intervention in this matter and also request to please allocate a new vicar as soon as possible to our Church in Adelaide.” (emphasis added)

[54] Secondly, during the telephone conversation on 9 March 2019 representatives of the Church management committee apologised to Mr Skaria for purporting to act in advance of the Metropolitan Bishop.

[55] Thirdly, the evidence of Mr Mathew 17 was that the Church (either as the general body or management committee) did not have the authority or power to unilaterally appoint or dismiss a priest without the agreement or decision of the Metropolitan Bishop.

[56] Fourthly, the announcement by the Metropolitan Bishop of 15 March 2019 18 is unambiguously expressed as the decision of the Metropolitan Bishop and makes no allowance for nor refers to any other decision or decision making authority.

[57] For the sake of completeness, I do not accept that the reference in the Metropolitan Bishop’s announcement to “the term of the present vicar is coming to an end” alters this conclusion. Mr Skaria’s two-year term had not come to an end by the date his dismissal took effect.

[58] I therefore conclude that Mr Skaria was dismissed from his work as the parish priest at the St Peters & St Pauls Jacobite Syrian Orthodox Church in Adelaide by decision of the Metropolitan Bishop dated 15 March 2019.

[59] I further conclude that Mr Skaria’s dismissal took effect on 1 April 2019. This is the date expressed by the Metropolitan Bishop in his announcement. I interpret the language used to refer to this date as the date of both the end of Mr Skaria’s service and the date of the intended commencement of the service of the replacement Bishop. The evidence before me suggests no other date than this date being advised to Mr Skaria by the Metropolitan Bishop.

[60] I do not accept the Respondent Employer’s submission that the date dismissal took effect was 23 February 2019 when the Church advised Mr Skaria via the WhatsApp messenger. This date was the date of a purported dismissal but (for reasons expressed above) not one that had effect in fact or law. Nor do I accept the submission that the date of dismissal was a date in February 2019 simply because Mr Skaria was paid a wage by the Church until a date in February 2019, and not to 1 April 2019. Whether Mr Skaria was entitled to be paid remuneration for his period of absence from the Church whilst he took himself to India is not a matter that bears on whether he was dismissed during the period of his absence or when that dismissal took effect.

[61] To be clear, I express no view in this decision as to whether Mr Skaria is or was owed remuneration for past service or arising out of his dismissal. The Commission’s unfair dismissal jurisdiction is not an underpayment jurisdiction. Further, being concerned only with jurisdictional issues this decision does not concern issues of merit or remedy that may give rise to considerations of notice or appropriate notice upon dismissal.

[62] Nor do I accept Mr Skaria’s submission that his dismissal took effect from 1 May 2019 because the replacement priest did not, in fact, commence service at the Church until that date. The terms under which Mr Skaria was dismissed by the Metropolitan Bishop were intended to be contiguous with the commencement date of the replacement priest but were not conditioned by that fact. That the replacement priest did not commence for a further month beyond 1 April 2019 (for reasons not revealed in the evidence before me) did not alter the fact that Mr Skaria did not work as a priest in the service of the Church after 1 April 2019. There is no evidence before me that the Metropolitan Bishop altered his announcement of 15 March 2019 to accommodate a later date for Mr Skaria’s dismissal to take effect. Mr Skaria’s own conduct, in returning to Australia for four days only in April 2019 and not travelling to Adelaide in that period, is objective evidence that he was not working as a priest at that time in the service of the Adelaide parish.

[63] I therefore conclude that Mr Skaria’s dismissal took effect on 1 April 2019. Accordingly his application, having been filed on 20 May 2019, is out of time by a period of twenty eight days. It was not filed within the period of 21 days after the dismissal took effect, as required by the FW Act.

Should an extension of time be granted to Mr Skaria?

[64] For Mr Skaria’s application to proceed, he requires the Commission to grant an extension of time for the filing of his application.

[65] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“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.”

[66] Mr Skaria’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 19 which stated:

“[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.”

[67] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[68] It is well established that an applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time. 20

[69] Mr Skaria’s evidence suggests two reasons for the delay.

[70] Firstly, he says that he was trying to engage with the Church to resolve his dispute prior to taking the matter to the Commission.

[71] Secondly, he says that whilst he was taking advice during April and May 2019 concerning his rights he was unaware until late May 2019 that a 21 day limitation applied to unfair dismissal claims.

[72] The evidence before me 21 does suggest that from at least 6 April 2019 (that is, five days after his dismissal took effect) Mr Skaria raised (by correspondence) a dispute with the Church concerning his entitlements. However, Mr Skaria’s letter of 6 April 2019 concerns entitlements, not an assertion that his dismissal was unfair or should be rescinded either by the Church or the Metropolitan Bishop. Mr Skaria was seeking payment of remuneration he believed due, and was pursuing propositions he advanced during the 9 March 2019 telephone conversation with the management committee that his remuneration, whilst serving the Church, was not correctly calculated or paid according to the terms of the package set out in his visa application.

[73] Mr Skaria’s letter (by email) of 8 May 2019 was more broadly framed. It referred to a complaint concerning “my arrears and immediate dismissal”, and it correctly referred to the fact that he had not received a reply to his 6 April 2019 letter. In view of the fact that Mr Skaria accompanied his 8 May 2019 communication with a Fair Work Commission Form 2 “from my solicitor” it can be concluded that, at least from that date, he had put the employer on notice that he was in some form contesting his dismissal or the terms under which he was dismissed.

[74] The Church replied on 10 May expressing the view that it had paid all arears due and inviting him to provide any further particulars.

[75] I do not consider this a reasonable explanation for the delay. Mr Skaria’s initial and primary motivation was to secure payment of arrears based on his view about what his remuneration package entailed, not to seek reinstatement or compensation for an unfair dismissal. When he raised the prospect of an unfair dismissal complaint on 8 May 2019, he was already out of time. Further, he gave the employer 48 hours from 8 May 2019 to meet his demand, and when the employer responded within 48 hours (10 May) Mr Skaria waited a further ten days before filing his application on 20 May 2019. Whilst the Church did not respond to his letter of 6 April 2019, there was no barrier to Mr Skaria filing his claim in light of the non-response, and certainly no barrier in doing so promptly after the rejection of the form F2 on 10 May 2019.

[76] I take into account that Mr Skaria had relocated to India for this period other than his return to Australia between 20 to 24 April 2019. However, there is no evidence before me that this impeded his communication with the Church or his advisers. His evidence was that he was actively taking advice about his rights from as early as 6 April 2019 from friends and professionals “in the know” 22 about Australian employment law.

[77] Nor do I consider Mr Skaria’s second explanation for the delay an acceptable reason. The draft F2 application which Mr Skaria accompanied with his 8 May 2019 email indicates, on its face, that a 21-day period applies for these claims under section 394 of the FW Act (question 1.5). Had Mr Skaria read the application he attached to his email, he would have been alerted to that fact from at least that date. Further, even if he remained unaware, it is well established that a lack of knowledge about a time limit is not, of itself, a reasonable explanation for seeking an extension to that time limit. 23 In circumstances where Mr Skaria was taking advice from persons about such matters, this reason is particularly unpersuasive.

[78] The reasons advanced by Mr Skaria for the delay in filing his application do not weigh in favour of granting an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[79] Prior to his dismissal taking effect on 1 April 2019, Mr Skaria was aware of the terms of the announcement that had been made by the Metropolitan Bishop on 15 March 2019. He knew not only that he had been removed by the Bishop from service of the Church but also when that was to take effect. Mr Skaria’s actions in remaining in India and not returning to the service of the service of the Church support that conclusion.

[80] This is a factor that weighs against granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[81] I have considered this issue in the context of considering the first reason for delay advanced by Mr Skaria. I have found that Mr Skaria did raise a dispute with the Respondent Employer but that his actions were initially and primarily concerned with the remuneration dispute, not the dismissal. When his dismissal was raised as an issue, a further delay occurred before filing proceedings.

[82] This is a factor that weighs against granting an extension.

Prejudice to the employer (section 394(3)(d))

[83] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances. However, there is no evidence that the Respondent Employer is likely to be prejudiced on account of an application not having been made by the due date. Whilst a replacement priest has been engaged, a claim of this nature can be advanced and remedy granted (if a claim is successful) even were it found that reemployment in the same position is inappropriate.

[84] Further, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 24

[85] On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[86] Mr Skaria’s application asserts that his dismissal was unfair because he claims he was serving the Church effectively as its priest.

[87] In response, the employer contends that alleged failures in communication and ministry justified the priest’s removal. In any event, the Respondent Employer intends to pursue a further jurisdictional issue that Mr Skaria was not an employee and, as such, not entitled to make a claim of this nature.

[88] Whilst this further jurisdictional issue adds a degree of complexity, I have already resolved to deal with that matter in the context of a hearing on merit and remedy. Future proceedings would not be delayed on that account. Further, while the nature of the contract between a Church and a priest is not necessarily a straightforward matter in employment law, on at least the material before me the employer’s case is arguable but no more than arguable.

[89] I have not heard evidence at this stage on the merits. I am thus unable to draw any conclusion about the respective strength of each case.

[90] In the context of considering whether an extension of time should be granted to Mr Skaria, I consider the merits of the application to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[91] No evidence or submissions from Mr Skaria or the Church raise issues of fairness with and between other persons.

[92] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[93] The delay in lodgement of twenty eight days is significant particularly having regard to the 21 day statutory time limit.

[94] In considering whether exceptional circumstances exist, the conduct of Mr Skaria after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional. 25

[95] The reasons for delay are unconvincing. They do not adequately explain the delay or periods of the delay.

[96] Weighing the other factors, none lead me to conclude that the circumstances in this matter are exceptional.

[97] Even as far back as 9 March 2019, Mr Skaria’s dispute primarily concerned his remuneration and alleged arrears. Unless and until those issues were resolved, he did not wish to return from India to the service of the Church. He exercised his rights to continue to pursue his complaint about remuneration and arrears with the Church once he was dismissed, and despite being in receipt of advice concerning his rights he waited until well after the Church maintained a contrary view before he filed this claim. He could have filed this application within time, but did not do so. He could have filed this application by either 8 or 10 May 2019 when he had a form F2 from his solicitor and the Church’s response but took a further ten days to do so.

[98] Mr Skaria has not demonstrated that exceptional circumstances exist so as to warrant an extension of time.

Conclusion

[99] For these reasons, Mr Skaria’s application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Accordingly, his application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

B. Skaria, on his own behalf

B. Mathew and E. Paulose, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

25 September.

Printed by authority of the Commonwealth Government Printer

<PR713411>

 1   R1

 2   A8

 3   Translated from audio as A15

 4   A16 page 1

 5   A16 page 3

 6   A10

 7   A6 and A11

 8   A4

 9   the contents of the conversation have been transcribed and are in evidence as A9

 10   A7 and R2

 11   A1

 12   Audio transcript 25 September 2019 3.43pm

 13   A2

 14   A3

 15   A10 final sentence “The General Body decided to request to our Metropolitan to appoint a new Vicar.”

 16   A6 and A11

 17   Audio transcript 25 September 2019 4.12pm

 18   A7 and R2

 19   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 20   Carlene Daphne Smith v Canning Division of General Practice[2009] AIRC 959

 21   A1

 22   Audio transcript 25 September 2019 3.43pm

 23   [2011] FWAFB 975 at 14

 24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 25   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288