Brian Davies v Rawad Nemeh trading as Pearl Painting & Panel

[2021] FWC 4200

[2021] FWC 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Brian Davies
v
Rawad Nemeh trading as Pearl Painting & Panel
(C2021/1655)

DEPUTY PRESIDENT LAKE BRISBANE, 16 JULY 2021

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

[1] On 21 March 2021, Brian Davies (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of her employment by Rawad Nemeh trading as Pearl Painting & Panel (the Respondent).

[2] The Applicant had worked for the Respondent since around August 2020. The Applicant accepted that he was notified that his employment was to be terminated on 26 February 2021. He understood that was to be effective immediately. He lodged this application with the Commission on 21 March 2021. He accepted this was two days outside the 21-day time limit prescribed in s.366(1) of the Act. The Respondent has not engaged in this process, save for one email referred to below. It is still necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

Consideration of whether a further period should be granted

[3] As noted above, s. 366 of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.

[4] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 In Nulty v Blue Star Group Pty Ltd, the Full Bench of Fair Work Australiaconsidered the meaning of ‘exceptional circumstances’ in the following terms:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”” 2

[6] This passage was cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 3 In that case, the Full Bench added that:

“Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.”  4

[7] For the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act.

[8] I invited submissions from both parties in respect of whether exceptional circumstances exist in this case. Both parties responded via email.

[9] The Applicant’s submissions regarding the existence of exceptional circumstances were:

“(a) I was advised the 21 days was not a requirement

(b) no action was taken to dispute this dismissal as wages had already stopped

(c) I didn’t see any prejudice towards the employer in this regard

(d) I believe my application has merits

(e) I was the sole permanent employee there were no others in a similar position”

[10] The Respondent claims that there are no exceptional circumstances in this case. The Respondent’s response to the Applicant’s email was:

“Absolute LIES ! 

All lies mate

I had another employer

I paid your annual leave in cash

I gave you 4 verbal warnings

I can get in writing all complains from all my customers in regards to your poor quality workmanship 

I can guarantee and show the refunds given and the work re done by my shop for your poor quality workmanship costing me money time and resources 

I can show in bank statements and testimony from clients complains that have been lodged against you for your poor quality workmanship

You told me if I pay cash you will just leave 

WE HAVE TO GO TO COURT BECAUSE YOUR CLAIM ARE LIES.”

[11] The Applicant’s oral submissions regarding the existence of exceptional circumstances were that he had been told by someone at Fair Work at that the 21 days did not apply. That was why did was not thinking about lodging the application in terms of the 21-day time limit. He did not intend to wait too long but, thinking there was no urgency, he just lodged it when he could. That happened to be outside the 21 days.

[12] The Respondent did not provide any further submissions. He did not attend the hearing. My Associate called him five times in the hour or so before the hearing. She left two voice messages and sent further emails. As at the date of writing this decision, no response has been received.

Consideration

Section 366(2)(a) – The reason for the delay

[13] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 5 or a reasonable explanation.6 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,7 the Full Bench noted at [39]:

“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 8

[15] In the present case, the primary reason pointed to by the Applicant was that he had been told by someone at Fair Work at that the 21 days did not apply. The Fair Work Commission website clearly states that the 21-day time limit applies. While I do not seek to cast doubt on what the Applicant understood from the alleged conversation with “Fair Work”, I am not satisfied, in the absence of any further evidence, that to be a sufficient reason to qualify the Applicant’s circumstances as “exceptional”.

Section 366(2)(b) - Action taken to dispute the dismissal

[16] The Applicant did not dispute the dismissal itself. He accepted that the Respondent had decided to terminate his employment and did not see much point in negotiating. Instead, taking a pragmatic approach, the Applicant simply began looking for new work. He did, however, try to recover unpaid wages.

Section 366(2)(c) - Prejudice to the employer

[17] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 9 I consider this factor to be neutral.

Section 366(2)(d) - Merits of the Application

[18] In Kornicki v Telstra-Network Technology Group, 10 the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said that, “It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[19] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and because of this the Commission “should not embark on a detailed consideration of the substantive case.” 11

[20] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. I consider this factor neutral.

Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position

[21] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 12 The Applicant did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is a neutral factor in my determination.

Conclusion

[22] Having regard to all the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that the requisite exceptional circumstances do not exist in this matter.

[23] Pursuant to section 366(2) of the Act, the extension of time is refused. Accordingly, the Applicant’s application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731765>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].

 2   [2011] FWAFB 975 at [13]-[14].

 3   [2019] FWCFB 2384 at [19].

 4   [2019] FWCFB 2384 at [20].

 5   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 6   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 7   [2018] FWCFB 901.

 8   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

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

 11   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 12   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].