D Mahfoud v Egans Asset Management Pty Ltd T/A Egans

[2010] FWA 4047

[2010] FWA 4047

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

D Mahfoud
v
Egans Asset Management Pty Ltd T/A Egans
(U2010/6975)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 28 MAY 2010

Termination of employment - extension of time.

[1] This matter concerns an application made by Mr D Mahfoud, pursuant to s.394 of the Fair Work Act 2009 (the Act), for relief in respect of the termination of his employment by Egans Asset Management T/A Egans.

[2] The employment of Mr Mahfoud was terminated by Egans on 28 October 2009, effective from that date.

[3] The s.394 application was made on 17 March 2010.

[4] On 1 April 2010, the matter was listed for a conciliation conference on 7 April 2010. On the same date, solicitors for Egans filed its employer’s response to the application, indicating that it objected to the application on the basis that it was lodged beyond the 14 day period in s.394(2)(a) of the Act and the reasons stated for an extension of time in the application did not constitute exceptional circumstances within the meaning of s.394(3) of the Act. As a result, the conciliation conference was cancelled and the matter was referred to myself for determination of the question of whether a further period for lodgement, beyond the prima facie position of 14 days, should be allowed.

[5] The matter was heard on 28 May 2010.When the matter came on, I obtained and considered the views of the parties as to how the matter should proceed and whether or not a hearing would be the most efficient way to resolve the matter. I decided that a hearing would be an appropriate course. 1

[6] Mr Mahfoud represented himself. As a result, at the commencement of the hearing on 28 May 2010, I explained to him the relevant statutory matters which arise in a matter such as this, as set out in s.394 of the Act, which I am required to consider. In addition, I explained to Mr Mahfoud the difference between submissions put as to factual matters relevant to the statutory considerations, if challenged, and evidence as to the facts and invited him to address factual matters by way of evidence if he wished. Mr Mahfoud declined to bring evidence.

[7] Section 394(2) of the Act provides that an application must be made:

“(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3)”.

[8] In this case the application was made 140 days after the dismissal took effect and 126 days beyond the prima facie 14 days set out in s.394(2)(a) of the Act. If the application is to be accepted, Mr Mahfoud needed to satisfy me that there were exceptional circumstances which would justify allowing the application to be made 126 days (18 weeks) late, taking into account the statutory matters within s.394(3) of the Act. Those matters are:

“(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.”

[9] Under the Workplace Relations Act 1996, similar provisions in relation to the extension of time in s.643(14) were subject only to the principles established by the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd. 2 Those principles expressly stated that “special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended”. As noted by Commissioner Whelan, in the context of a s.366 application under the Act, which is materially in the same terms as s.394, save that the time period for an application, absent an extension of time, is 60 days rather than 21 days:

“It is therefore to be assumed that in requiring the employee to establish that there are exceptional circumstances the discretion of the Tribunal to grant an extension of time is more constrained.”  3

The reason for the delay

[10] In his application, Mr Mahfoud stated that “I understand there is a time limit to lodge this form but ive (sic) just been pre-occupied with my back problems lately”. In written submissions, he explained that he was initially unaware of the time limit but became aware of them on 18 November 2009, when he attended the office of a solicitor referred by the Law Institute of Victoria, which Mr Mahfoud contacted on 13 November 2009. The application was lodged 123 days after Mr Mahfoud was made aware of the time limit. This delay was explained by him, in his written submissions, by his pre-occupation with an injury sustained at work, the stress of dealing with the pain and medication, the effect of the medication (causes drowsiness and affects mental alertness and co-ordination) and treatment of his injury (physiotherapy and hydrotherapy). In the hearing of 28 May 2010, Mr Mahfoud submitted that he was unaware of the 14 day time limit in s.394(2)(a) until mid-November 2009 and throughout the entire period from sustaining his injury in August 2009 until the making of his application in March 2010, he was pre-occupied with treatment for his injury and was affected by his medication by way of drowsiness, such that there were “a lot of days” when he “was not feeling up to it”. He also submitted that he was unaware of how to pursue his application due to the lack of access to the internet in his domestic situation until a time in February or March 2010.

[11] Egans submitted that Mr Mahfoud produced no evidence in relation to these matters and did not demonstrate how they explained the delay in lodging his application.

[12] Even if it were accepted that Mr Mahfoud’s initial ignorance of the time limit in s.394(2)(a) acceptably explained the delay in lodgement until he became aware of it in November 2009, I am not satisfied that there is an acceptable delay for lodgement for the extensive period thereafter. There is no evidence to support such an explanation.

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

[13] Mr Mahfoud became aware of the termination of his employment by verbal communication and letter on the date on which it had effect – 28 October 2009.

Any action taken by the person to dispute the dismissal

[14] There is no evidence that Mr Mahfoud took any action to dispute the termination other than to make his application on 17 March 2010, and by seeking legal advice in mid-November. In the hearing on 28 May 2010, Mr Mahfoud accepted that he took no other such action.

Prejudice to the employer (including prejudice caused by the delay)

[15] Egans submitted that given the months which have passed between the termination and the application, and between the application and any hearing, it will be prejudiced by the delay as witnesses’ recollection of relevant events will have diminished in accuracy. Further, a large number of potential witnesses are no longer employed by Egans. 4 I accept, in the context of the 18 week delay in lodgement, that some prejudice would result for Egans, although not a significant prejudice.

The merits of the application

[16] Egans submitted that the merits of Mr Mahfoud’s application are not strong and he does not have any reasonable prospect of succeeding in his claim. A statement of Mr J Foster, which was accepted without challenge by Mr Mahfoud, set out certain admissions by Mr Mahfoud which, Egans submitted, supported a finding that the application was without reasonable prospect of success. Mr Mahfoud disputed the proposition that his claim lacked merit. For the purpose of this decision, and in the absence of full evidence as to merit, I regard this consideration as neutral in determining the matter.

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

[17] Neither Mr Mahfoud nor Egans suggested that any relevant considerations arose in relation to this consideration in the circumstances of this matter.

Conclusion

[18] There is no acceptable explanation for the vast majority of the delay, even if it were accepted that Mr Mahfoud’s initial ignorance of the time limit provided such an explanation up until 18 November 2009. Mr Mahfoud has not provided any evidence or reasonable explanation as to why his illness and treatment or the effect of medication, which no doubt affected the time available to him and his alertness to some degree, prevented him from lodging his application for 18 weeks after he was advised of that limit. Mr Mahfoud was made aware of the termination of his employment on the day it took effect. Mr Mahfoud took no action to dispute the termination other than to make his application on 17 March 2010 and by seeking legal advice in mid-November. Egans would suffer some limited prejudice from the extensive delay in lodgement. Having regard to my findings in relation to those statutory matters, I am not satisfied that there are exceptional circumstances which would justify allowing a further period of the lengthy duration involved for lodgement of the application.

[19] The application has not been made in accordance with s.394 of the Act and is dismissed. An order to that effect has been made in PR997558.

SENIOR DEPUTY PRESIDENT

Appearances:

D Mahfoud on his own behalf.

C Brehas for Egans Asset Management Pty Ltd T/A Egans.

Hearing details:

2010.

Melbourne:

May 28.

 1 See s.399 of the Fair Work Act 2009.

 2   Brodie-Hanns v MTV Publishing Ltd, (1995) 67 IR 298.

 3   Parker v Department of Human Services, Southern Metropolitan Region, [2009] FWA 1638 at para 28.

 4   Exhibit Egans 1.

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