Da'ad Mudher Nizar Alqaisi v L.K.Morton & J.C.Small
[2022] FWC 313
•15 FEBRUARY 2022
| [2022] FWC 313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Da’ad Mudher Nizar Alqaisi
v
L.K.Morton & J.C.Small
(C2021/7541)
| COMMISSIONER P RYAN | SYDNEY, 15 FEBRUARY 2022 |
Application to deal with contraventions involving dismissal - Application to deal with a dismissal dispute filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Da’ad Mudher Nizar Alqaisi (Alqaisi/Applicant) for the Fair work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
By the Application, Ms Alqaisi states her employment with L. K. Morton & J.C. Small (Respondent) commenced on 17 September 2021 and was terminated on 27 September 2021. The Application was lodged on 3 November 2021.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 18 October 2021. The Application was therefore filed 16 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.366(2). The Respondent opposes this request and objects to the Application on the basis that it did not dismiss the Applicant.
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard via Microsoft Teams on 9 February 2022.
For the reasons that follow, I decline an extension of time under s.366(2).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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 of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]
I now consider these matters in the context of the application.
s.366(2)(a) – Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[4]
In addition to the Form F8, the Applicant filed a bundle of documents comprising screenshots of text messages, copies of emails, a tax invoice and a short submission.
During the hearing and in response to a question from the Commission, the Applicant stated the main reasons for the delay in filing the Application were that she was not aware of how to apply and that her dog was sick and required treatment. The Applicant also submitted that she had been evicted from her rental property following her dismissal and this prevented her from filing the Application within the prescribed period.
Not aware of how to apply
The Applicant did not elaborate on this reason beyond the bare assertion that she was not aware of how to apply to the Commission.
I do not accept this to be an acceptable explanation for two reasons. First, I note there is a range of publicly available sources of information to assist prospective parties in matters that may proceed before the Commission.
Second, it is well established that a lack of knowledge (or ignorance) of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[5]
The Applicant’s dog was sick and required treatment
The Applicant submitted that her pet dog was suffering from tick paralysis, necessitating surgery and overnight treatment in a veterinary hospital. The Applicant filed a copy of the tax invoice from the veterinary hospital which set out the treatment provided and treatment date of 22 October 2021.
Apart from observing her dog was sick, making an appointment with the veterinarian and delivering her dog to the veterinary hospital, the Applicant was not able to explain how this prevented her filing the Application within the prescribed period which ended at midnight on 18 October 2021. Furthermore, the Applicant has not provided any explanation as to how this prevented the filing of the Application in the period between 22 October 2021 and the filing of Application on 3 November 2021.
Eviction from rental property
The Applicant submitted that following the termination of her employment, she was evicted from her rental property and was unable to file the Application until 3 November 2021.
It is unclear precisely when the Applicant was evicted from her rental property as she did not seek to admit into evidence any documents such as a notice/order of termination of the residential tenancy agreement or otherwise provide a precise date. The only documentary material before the Commission relevant to this issue is a copy of a text message which the Applicant sent, presumably to her former landlord, challenging the decision on the basis that it occurred 2 days prior to the “covid non eviction start date” and seeking recovery of her rental bond and items of her property.
The “covid non eviction start date” appears to be a reference to New South Wales Government’s moratorium on terminating residential tenancies for non-payment of rent by COVID-19 affected tenants.[6] The moratorium period commenced on 14 July 2021 and ended at the beginning of 12 November 2021.[7] The moratorium period was immediately followed by a further transitional moratorium period which commenced on 12 November 2021 and will end at the end of 12 February 2022.[8]
Two days prior to the commencement of moratorium period is 12 July 2021, and two days prior to the commencement of the moratorium transitional period is 10 November 2021.
I do not see how either of those dates are relevant to the issue before the Commission. The first date occurred prior to the commencement of the Applicant’s employment. The second date occurred after the Application had filed the Application.
Reason for the delay – conclusion
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the application on 3 November 2021. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
The Respondent did not submit that it would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
s.366(2)(d) – Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to extend time. The issue of whether there was a dismissal is contested and there is insufficient evidence regarding the events of 27 September 2021 before the Commission. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, the application for the Commission to deal with a dismissal dispute must be dismissed.
An order to that effect will issue with this decision.
COMMISSIONER
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
9 February.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[6] See Part 6A of the Residential Tenancies Regulation 2019 (RTR).
[7] Regulation 41A of the RTR.
[8] Regulation 41CA of the RTR
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