Dr Hassan Zaghloul v Woodside Energy Limited
[2013] FWC 4051
•27 JUNE 2013
[2013] FWC 4051 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Dr Hassan Zaghloul
v
Woodside Energy Limited
(C2013/514)
COMMISSIONER CLOGHAN | PERTH, 27 JUNE 2013 |
Application to deal with contraventions involving dismissal.
[1] On 12 April 2013, Dr Hassan Zaghloul (Applicant) made application to the Fair Work Commission (Commission) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (FW Act).
[2] The application was made pursuant to s.365 of the FW Act.
[3] Dr Zaghloul alleged that he was dismissed in contravention of Part 3-1 General Protections of the FW Act by Woodside Energy Ltd (Employer).
[4] Dr Zaghloul was dismissed by the Employer on 5 March 2013.
[5] As the application was not made within 21 days after his dismissal took effect pursuant to s.366(1) of the FW Act, it is necessary to determine whether exceptional circumstances exist to allow the application to be made on 12 April 2013.
[6] In determining whether exceptional circumstances exist, I must take into account the criterion in s.366(2) which are as follows:
(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.
[7] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Dr Zaghloul to file his application on 12 April 2013 by way of written submissions with the opportunity for either party to make supplementary oral submissions. To assist, I issued procedural directions on 23 April 2013.
[8] Having received submissions from the parties, this is my decision and reasons for decision on whether the Commission is satisfied that there are exceptional circumstances to allow the application by Dr Zaghloul to be made on 12 April 2013.
[9] Attached to his application, Dr Zaghloul provided a Form F1 Application for Further Period on Grounds of Exceptional Circumstances. In that document, the Applicant sets out the following in regards to the reasons for delay in filing his application:
● misinterpretation of the day of termination and when the 21 days required under s.366(1)(a) commences;
● the Applicant has been unfit for work since 13 February 2011 due to bullying and “mobbing”;
● on 14 March 2013, the Employer submitted that the Commission did not have jurisdiction to hold a conference into application C2013/3373 because the termination of employment occurred on 5 March 2013.
[10] To understand the issue immediately above raised by Dr Zaghloul, it is necessary to set out the following.
[11] By correspondence dated 5 February 2013, Dr Zaghloul’s employment was terminated by the Employer.
[12] On 25 February 2013, Dr Zaghloul signed a Form F8 Application to FWC to deal with a General Protections Dispute. The application was received by the Commission on 27 February 2013 (C2013/3373).
[13] In Dr Zaghloul’s application, he states that he was dismissed on 5 February 2013.
[14] On 14 March 2013, the Employer provided Dr Zaghloul a Form F8A Employers’ Response to Application for FWC to Deal with a General Protections Dispute. In the response, the Employer clearly states “the Applicant was not dismissed on 5 February 2013” - “the Applicant’s employment terminated on 5 March 2013”.
[15] While the Employer denied it had dismissed Dr Zaghloul in contravention of the general protections dispute, the Employer also stated, “the claim is misconceived and outside of jurisdiction because at the time the Applicant made the application, the Applicant had not been dismissed”. Put shortly, Dr Zaghloul’s application was premature.
[16] Notwithstanding the Employer’s response to Dr Zaghloul’s application, the matter proceeded to a conference on 5 April 2013. At the conference, the Employer repeated its assertion that the application was misconceived and the Commission had no jurisdiction to deal with the dispute. On the same day, the Applicant filed a Form F50 Notice of Discontinuance in application C2013/3373.
[17] I now return to the reasons set out by Dr Zaghloul on 12 April 2013 why the application was not filed within 21 days after the dismissal took effect.
● at the time of receiving the Employer’s Form 8A, “the Applicant was being hospitalised at Perth Clinic (Psychiatric Hospital) for excessive anxiety. The Applicant experienced significant memory loss during that period. Dr Roy Kolnik (telephone number deleted) responding to the Applicant’s severe level of memory loss, advised the Applicant that such memory loss is due to excessive stress/anxiety and should not be a permanent condition”;
[18] It is not disputed that Dr Zaghloul was an inpatient at Perth Clinic from 7-21 March 2013.
[19] I again return to the reasons set out by Dr Zaghloul on 12 April 2013 as to why the application was not filed within 21 days after the dismissal took effect.
● when the Applicant read the Employer’s “argument about date of termination, the Applicant planned to diffuse the issue by discontinuing application C2013/3373 and starting a new application within 21 days after the dismissal took effect on 5 March 2013:
● “However, due to severe memory loss experienced at the time, the Applicant totally forgotten about the issue altogether” (Applicant’s emphasis).
● “This application is therefore based on the Applicant’s mental condition and excessive anxiety accompanied by memory loss during the allowed 21 days, which obstructed him from diffusing the matter as originally planned on reading the respondent’s argument.”
[20] Dr Zaghloul provided a similar Form F1 on 3 May 2013.
[21] On 4 June 2013, Dr Kolnik provided his clinical notes of 15 March 2013. The relevant parts are as follows:
“greatest worry - memory
could not locate - hard drive
iphone charger
it’s really bothering me
last night I felt I was really losing it”.
[22] This is the only clinical evidence I have in relation to memory loss and they are notes by Dr Kolnik of what the Applicant said to him in a consultation.
CONSIDERATION
[23] For the purposes of determining whether I should grant an extension of time to file the application, I intend to follow, in seriatim, the criteria I must take into account in subsection 366(2) of the FW Act.
The reason for the delay
[24] In the original application for extension of time dated 7 April 2013, the Applicant asserts that the reason for the delay included:
“...due to severe memory loss experienced at the time, the Applicant totally forgotten (sic) about the issue altogether”
and
“this application is therefore based on the Applicant’s mental condition and excessive anxiety accompanied by memory loss during the allowed 21 days”.
[25] In the subsequent application for an extension of time dated 3 May 2013, Dr Zaghloul repeats the above reasons for the delay but also adds that “as a result of severe memory loss and lack of concentration...the Applicant lost his iphone charger twice and could not remember anything about why he would take the charger from the power point”.
[26] However, Dr Zaghloul does not dispute that during his period of hospitalisation and shortly afterwards he was involved in the following:
Federal Court Proceedings (ACD62 of 2012)
Email to Rene Moore (Federal Court listings coordinator) about attending the Federal Court mediation by phone | 14 March 2013 |
Email to Jacqui Young and David Parker (Ashurst Australia) attaching schedule of damages for the purposes of the Federal Court mediation. | 15 March 2013 |
Steven Blyth (Lewis Blyth & Hooper) and the Applicant (by phone) appeared at the Federal Court mediation. | 20 March 2013 |
Email to David Parker (Ashurst Australia) asking for correspondence to be sent directly to the Applicant. | 20 March 2013 |
The Applicant filed a Notice of termination of lawyer’s retainer in the Federal Court Proceedings. | 22 March 2013 |
Email to David Parker (Ashurst Australia) regarding the Applicant’s observations of the Federal Court mediation. | 22 March 2013 |
Email to Jacqui Young (Ashurst Australia) responding to a letter about the Respondent’s intention to apply for summary judgment in the Federal Court proceedings. | 22 March 2013 |
Email to Jacqui Young (Ashurst Australia) regarding termination of retainer of Steven Blyth (Lewis Blyth & Hooper) | 22 March 2013 |
Email to Jacqui Young (Ashurst Australia) regarding correspondence with Steven Blyth (Lewis Blyth & Hooper) | 23 March 2013 |
Email to Rene Moore (Federal Court listings coordinator) regarding use of a mobile phone number for a directions hearing in the Federal Court proceedings. | 23 March 2013 |
Email to Jacqui Young (Ashurst Australia) regarding correspondence with Steven Blyth (Lewis Blyth & Hooper) | 23 March 2013 |
Email to Rene Moore (Federal Court listings coordinator) regarding use of a mobile phone number for a directions hearing in the Federal Court Proceedings | 23 March 2013 |
Email to Associate to Justice Gilmour attaching letter to Justice Gilmour dated 25 March 2013 regarding transfer of the Federal Court proceedings, the trial date and the respondent’s summary judgment application. | 26 March 2013 |
Email to Associate to Justice Gilmour regarding email referred to by Respondent in its affidavit filed in the Federal Court Proceedings. | 26 March 2013 |
The Applicant appeared at a directions hearing in the Federal Court by telephone. | 26 March 2013 |
First General Protections Application (C2013/3373)
Email to Associate to Commissioner Cloghan regarding attendance at conciliation conference by phone. | 24 March 2013 |
[27] Put simply, the Applicant is putting to the Commission that the reason for the delay in filling his application within 21 days was due to “severe memory loss”, “mental condition” and “excessive anxiety”. For the Applicant, such reasons are exceptional and conclusively demonstrate that he was unable to “discontinue application C2013/3373” and start, “a new application within 21 days after the dismissal took effect on 5 March 2013”.
[28] However, there appears to be a striking incompatibility between the actions in paragraph [26] above and the inability of the Applicant to file an application within 21 days. In these circumstances, I am unable to agree with the Applicant when he states, “the proven Applicant’s condition of memory loss supports the Applicant’s application for an extension of time”.
[29] It is not unreasonable to ask the question, why was the Applicant able to engage himself in action in the Federal Court and application (C2013/3373) in this Commission, while he totally forgot about the statutory requirements to file a new application within 21 days as planned. It would appear that the memory loss is self selected.
[30] It is difficult to avoid the conclusion that the Applicant’s explanation for the delay is implausible and cannot be reconciled with his actions in other jurisdictional matters.
[31] Should a person be hospitalised, there is a presumption that the person is incapacitated from carrying out day to day activities and this is exceptional. However, it is a mistake these days, with pervasive technology, to assume that a person’s life comes to a standstill for a period of time. In some cases, that will be true. However, in Dr Zaghloul’s case, his actions demonstrate that he continued dealing with a variety of contested matters relating to his employment while in hospital.
[32] It does not assist Dr Zaghloul when he submits that these circumstances are “irrelevant and appears to imply that the Applicant is faking illness, pain and suffering. It is insensitive and highly offensive”. While the Employer’s submission in this respect may be offensive to Dr Zaghloul, it is an inescapable fact which I must consider.
[33] Put shortly, the simplicity and logic of Dr Zaghloul’s argument is undermined by his own actions during his period of hospitalisation and claim of severe memory loss.
[34] I now turn to Dr Zaghloul’s submission regarding his misinterpretation of the day of termination and when the 21 days commenced. In his letter of termination, it states, “Your employment will end on 5 March 2013”. I do not consider these words vague or ambiguous. Should Dr Zaghloul have misinterpreted these words or the FW Act, then that is a failing on his behalf. This Commission does not recognise misinterpretation as a “defence” as to why an applicant is unable to comply with the requisite standard statutory time. To do so, would invite applicants to self determine when applications could be filed depending upon their ascribed knowledge.
Any action taken by the person to dispute the dismissal
[35] It is not in dispute that the Applicant has pursued various actions in relation to his employment both in the Commission, the Federal Court and elsewhere.
[36] This fact, of itself, demonstrates that the Applicant is familiar with jurisdictional issues and Tribunal processes.
[37] With respect to action taken by the Applicant, it is a fact that he had already taken action in this Commission to dispute the dismissal under the assumption that he had been dismissed on 5 February 2013.
[38] While action by the Applicant to dispute his termination of employment is a positive factor towards the overall circumstances of allowing an extension of time, it is not sufficient, of itself. Further, that ‘action” is not devoid of scrutiny. The particulars of the Applicant’s actions in filing the application exhibit an inference, at least, that the applicant knew and complied with statutory timelines. However, this same action to contest his dismissal one month later, for reasons which are considered above, did not meet the statutory timeline.
Remaining criterion in s.366(2)(c)-(e)
[39] For reasons which are not necessary to set out in detail, I have adopted a neutral position as to whether I should allow the Applicant an extension of time to file his application on 12 April 2013 in respect to the remaining criterion in s.366(2)(c)-(e).
[40] In dealing with the criterion in s.366(2)(c)-(e), I received approximately 800 pages as part of the Applicant’s application and submissions. My impression from the Employer’s response is that much is in dispute and, for this reason alone, it would be almost impossible to form a view on the merits of the application.
[41] Having considered each criterion, it was difficult to obscure the fact that Dr Zaghloul primarily relies upon his severe loss of memory, anxiety and mental state as the reasons for the delay in filing the application within the standard statutory timeline. By his own actions, this argument has been found wanting for the reasons I have set out above.
[42] Parliament has provided a strict timeline in paragraph 366(1)(a) of the FW Act to file an application alleging a breach of general protection. The onus is upon relevant persons to satisfy that timeline. In this application Dr Zaghloul failed to meet that timeline and I am not satisfied, for the reasons outlined above, that there are exceptional circumstances to allow a further period to 12 April 2013 to file the application.
CONCLUSION
[43] In conclusion, for the reasons I have set out generally and those in particular, I am not satisfied that exceptional circumstances existed which led to the delay in Dr Zaghloul filing his application. Accordingly, the application must be dismissed. An Order to this effect will be issued jointly with this Decision and Reasons for Decision.
COMMISSIONER
Final written submissions:
Applicant: 5 June 2013.
Respondent: 6 June 2013.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR538129>
2
1
0