Dr Mehrdad Honarvar v Heart Care Western Australia Pty Ltd T/A Advara Heart Care
[2024] FWC 2174
•16 AUGUST 2024
| [2024] FWC 2174 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dr Mehrdad Honarvar
v
Heart Care Western Australia Pty Ltd T/A Advara Heart Care
(C2024/4499)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 AUGUST 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection - out of time
Issue and outcome
On 1 July 2024, Dr Mehrdad Honarvar (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Heart Care Western Australia Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.
This was not the first application that the Applicant had brought against the Respondent in respect of his dismissal. On 25 June 2024, I issued a decision dismissing the Applicant’s application under s 773 of the Act, for the Commission to deal with an unlawful termination dispute.[3] It is observed that the Applicant’s application under s 773 of the Act had been made within the statutory timeframe.
The Applicant’s dismissal took effect on 3 May 2024. It follows that his application under s 365 of the Act was lodged 38 days outside of the statutory period.
Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
Before the hearing, directions were issued to the parties providing detailed information on what was required of both. The Applicant requested a hearing with an interpreter and accordingly the Applicant’s request was accommodated. At the commencement of the hearing, the parties were informed of the factors the Commission considers when determining whether an extension of time should be permitted.
Having considered those factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and it is therefore unnecessary to consider whether it is fair and equitable that time should be extended. It follows that I decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order[4] issues concurrently.
Background
The Applicant commenced employment with the Respondent on or around 1 February 2024 as an Associate Cardiologist. The Applicant’s base salary was $450,000.00 per annum. The Applicant’s employment was subject to a probationary period of six months.
The Respondent submitted that the Applicant is a highly educated cardiologist who successfully completed his residency program in Australia via the Royal Australian College of Physicians.
The Respondent had provided relocation assistance to the Applicant in the vicinity of $25,000.00 (gross) after assisting him to relocate from Melbourne.
Not long after the Applicant commenced work with the Respondent, he received an email from Alex McSporran, the General Manager of the Respondent dated 15 April 2024. The email set out that the Respondent had received negative patient feedback and complaints about the Applicant and that when there was frequent negative feedback about a physician, the Clinical Management Committee (CMC) elected a group of senior doctors to review the veracity of the complaints. The email explained that the Chair of the CMC and the General Manager wished to meet with the Applicant to discuss patient feedback, and instances where pharmacists had called having received illegible scripts.
By email dated 16 April 2024, the Applicant responded to the email dated 15 April 2024, noting the following:
“I appreciate you sending me the feedback, but unfortunately, I cannot accept any of them as a real complaint. Please read my formal answers carefully; meanwhile, you asked some questions about my medical practice for example why I selected a special medication. Here I need to say that my tolerance for comments on my medical practice is Zero. Even other colleagues do not have the right to discuss the medical practice of another cardiologist. If there is any malpractice, it should be followed by AHPRA or any other authorities.”[5]
It is unclear from the evidence tendered whether the meeting referenced in the General Manager’s email dated 15 April 2024 took place, and if it did, when that meeting occurred. It is observed that the Respondent referred to ‘a’ meeting taking place, submitting that having considered the Applicant’s response to its email dated 15 April 2024:
“[i]t was determined, from the Applicant’s written responses and the meeting discussion, that the Applicant was unwilling to consider changes to his practice to address the concerns and ensure that quality and safety standards were met. In many cases, the Applicant trivialised or dismissed the concerns, or claimed the concerns were ‘not real’, including where the concerns were raised or shared by other cardiologists. It was apparent that the Applicant was unable to perform the inherent requirements of his role, and that this posed a significant and unacceptable risk to the care and safety of our patients.”[6]
By letter of 3 May 2024, the Applicant was notified of the following:
“As discussed with you today in your meeting with [Alex McSporran] and Thomas Mahoney, Technical Services manager, a decision regarding your probation outcome has been made.
Your probation period with us at Advara HeartCare is due to end on 1 August 2024.
We confirm that we have decided not to continue your employment during your probationary period. As a result, your employment will end today, 3 May 2024.”[7]
The Applicant submitted that despite practising in Australia for over four years and having 15 years of experience overseas without any complaints and having worked for the Respondent in Queensland for six months before coming to Perth, the Respondent posed he was a significant and unacceptable risk to patients. The Applicant pressed this claim was false.
The Applicant made an application for unlawful termination, which the Respondent objected to on jurisdictional grounds on 27 May 2024, specifically on the basis that that the Applicant was entitled to make a general protections application because the Respondent is a National System Employer. That matter was listed for mention/directions hearing on 7 June 2024 and progressed to hearing with an interpreter on 25 June 2024.
The unlawful termination application was dismissed on 25 June 2024, the Respondent having been successful with its jurisdictional objection.
Consideration
3.1 Extension of time
Consideration now turns to whether to extend the 21-day period within which the application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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 similar position.
It has been said that proceedings not commenced in time should not be entertained.[8] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[9]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[10] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[11] 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 can be considered exceptional.[12]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.”[13]
3.2 Reason for the delay
In Pottenger v Department of Caffeine,[14] it was observed that the 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,[15] or a reasonable explanation.[16]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[17] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[18]
In respect of the delay period the Respondent made several submissions, an abridged version of which, follows:
a) on lodging his unlawful termination application, my Chambers emailed the parties with an explanation of the jurisdictional objection and clearly noted that the Applicant may choose to discontinue his unlawful termination application – however, should he choose to bring a general protections application he was to be aware of the 21-day time limit;
b) a directions hearing for the matter was held on 7 June 2024 with the assistance of an interpreter. Again, the jurisdictional objection was explained to the Applicant but notwithstanding this, the Applicant traversed the merits of his case. The purpose of the directions hearing was repeated to the Applicant and it was again explained that the Applicant may choose to discontinue his application but were he to do so, he should be aware of the 21-day time limit for bringing a general protections application;
c) the Applicant lodged written submissions ahead of the substantive hearing and my Chambers emailed the parties on 14 June 2024 noting that the Applicant’s submissions did not respond to the jurisdictional objection raised by the Respondent and it was reiterated to the parties that the hearing would only contend with the jurisdictional issue; and
d) the Applicant had the benefit of an interpreter (who was also a qualified lawyer) during the directions hearing, and there can be no doubt that the Applicant understood the requirements of the process and the instructions, as well as the concurrent 21-day time limit on any general protection application.
The Applicant submitted that one of the factors the Commission considers in determining whether there are exceptional circumstances, is any action taken by the person to dispute the dismissal. While the Applicant’s submission in this respect is prefaced in a way that it would appear his submission lacks relevance to the factor currently being considered, that is not necessarily the case. The Applicant submits that he applied in the legal timeframe for his unlawful termination of employment and because the Commission’s process to deal with his application was so long, he did not apply for the general protections claim until after an order dismissing his unlawful termination application was issued by the Commission.
The Applicant said that he believed his application for the general protections contravention had been made correctly and had been made in the right time. The Applicant pressed that the Commission had have never advised him he needed to terminate his application (presumedly the unlawful termination application) and it had arranged for a hearing of the application. Further, it was not until after the Commission had issued the order, that the Applicant was informed that he could lodge a general protections application.
First, it is observed that the Applicant’s application under s 365 of the Act was made on 1 July 2024, some seven days after the issuance of the order dismissing the Applicant’s application for unlawful termination. There is no explanation for this part of the delay. It is evident that whilst the Applicant had been informed on multiple occasions about the timeframe for submitting a general protection application, the Applicant acted in a manner that was absent a sense of urgency to make the application currently on foot.
Second, it is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[19] Whilst the Applicant speaks English as a second language he has, nevertheless, been a practising cardiologist in Australia for over four years and has successfully completed his residency program in Australia via the Royal Australian College of Physicians. In his application, the Applicant points out that that one of the standard requisites for clinical practice in Australia by AHPRA is passing the ‘IELTS’ or ‘OET’ English exam successfully. Arguably then, it is not the case that the Applicant lacks the intellectual capacity or access to resources, to have ascertained the correct jurisdiction in which to bring his application concerning his dismissal and then to have made any subsequent general protections application as a matter of urgency.
Third, the Respondent raised salient points concerning the programming of the Applicant’s application under s 773 of the Act, observing the issuance of written directions, and verbal directions with the assistance of an interpreter, which highlighted for the Applicant the Respondent’s jurisdictional objection and the implications of the same.
Whilst I have considered the delay as the period beyond the 21-day period, regard has been had to the circumstances from the date the termination of employment took effect. Considering the totality of the evidence, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the entire period of the delay in lodging his application. This weighs against the granting of an extension of time.
3.3 Action taken to dispute the dismissal
It is apparent that the Applicant took action to dispute his dismissal by bringing an application under s 773 of the Act within the statutory period for that application. However, this application was ultimately misconceived. On balance, this factor weighs neither for nor against an extension of time.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of an extension of time. In the present case, I consider this to be a neutral factor.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[20] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[21]
Regarding the Applicant’s substantive case, he has relied upon a contravention of s 351 of the Act on the protected attribute of race and separately, it would appear, coercion. The Applicant contends that if the Respondent claims his communication with patients was problematic and one of the main reasons for his dismissal, then the Respondent has premised his dismissal upon his origin and race, which lends itself to a general protections application. The Applicant further notes that he has highlighted his compliance with AHPRA’s English proficiency requirements for clinical practice and suggests that the Respondent’s communication concerns are discriminatory.
It is to be appreciated that evidence on the merits is rarely called at an extension of time hearing and as a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[22] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. However, based on the submissions provided the Applicant’s application in respect of a contravention of s 351 of the Act and an assertion of coercion, borders on being absent merit. Notwithstanding, in the absence of evidence, I consider it appropriate to find the factor neutral.
3.6 Fairness as between the applicant and other persons in a similar position
The parties did not draw 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. I consider this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. The factors considered under s 366(2) either do not favour a granting of an extension or otherwise are neutral. In my view and for the reasons given, the circumstances of this case are not exceptional, either individually or when considered together. It is therefore unnecessary to consider whether it is fair and equitable to extend the time in which the Applicant could make his application.
DEPUTY PRESIDENT
Appearances:
M Honarvar, Applicant
J Stringer of the Respondent
Hearing details:
2024
Perth (by phone)
13 August
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] [2024] FWC 1667.
[4] PR778364.
[5] Digital Hearing Book page 150.
[6] Digital Hearing Book page 130.
[7] Digital Hearing Book page 153.
[8] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[9] Ibid [21].
[10] (2011) 203 IR 1, 6 [15].
[11] Ibid 5 [13].
[12] Ibid 5–6 [13].
[13] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[14] [2018] FWC 3403, [31].
[15] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[16] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[17] Stogiannidis (n 13) 165 [39].
[18] Ibid.
[19] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11]; Uhlhorn v P and J Mentiplay Investments Pty Ltd[2013] FWC 1353, [21].
[20] (1997) 140 IR 1.
[21] Ibid, 11.
[22] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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