Ehsan Ahmad v Pro Guard Security Group Pty Ltd
[2024] FWC 741
•21 MARCH 2024
| [2024] FWC 741 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ehsan Ahmad
v
Pro Guard Security Group Pty Ltd
(U2024/1005)
| COMMISSIONER P RYAN | SYDNEY, 21 MARCH 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Ehsan Ahmad (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) made on 30 January 2024 (Application).
On 11 February 2024, the Applicant submitted an amended application in which the Applicant states that his employment with Pro Guard Security Group Pty Ltd (Respondent) commenced on 28 December 2022 and was terminated with effect from 30 December 2023.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). If the Applicant’s dismissal took effect from 30 December 2023, the Application is 10 days outside the 21-day period. The Applicant asks the Fair Work Commission (Commission) to allow a further period for the Application to be made under s.394(3).
In its Form F3 Employer Response, the Respondent stated that the date the dismissal took effect was 20 December 2023.
Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 20 February 2024 advising that the Application appeared to have been made out of time and inviting the Applicant to provide any preliminary submissions. On 23 February 2024, the Applicant filed a preliminary submission setting out an explanation for the delay in making the Application.
Following the allocation of the matter to my chambers, and in accordance with directions issued by me, both parties were provided with an opportunity to file further materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard as a determinative conference before me on 19 March 2024. The Applicant was self-represented. The Respondent was represented by its director, Mr Sam Soames.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
When did the dismissal take effect?
The parties were in dispute in relation to the date the dismissal took effect.
While the parties had the opportunity to file evidence and submissions in support of the respective cases, the material filed was limited and there was a dearth of documentary material supporting the factual matters relevant to an application for an extension of time to file an unfair dismissal remedy.
During the proceedings, the Applicant accepted that his last working day was 20 December 2023 but contended that he was dismissed with immediate effect on the following Sunday, 24 December 2023.
The Respondent did not seriously challenge the Applicant’s contention that he was dismissed with immediate effect on 24 December 2023, nor did it adduce any documentary material such as employee records or the written notice of termination supporting its position.
Having regard to the submissions of the parties, I find that the date the dismissal took effect was 24 December 2023.
This means the Application was made 37 days after the date the dismissal took effect, and 16 days outside the 21-day period. Accordingly, the Applicant will require an extension of time.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application 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 are 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.394(3) 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 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) 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 unfair dismissal application.[3]
I now consider these matters in the context of the application.
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 the Application, the Applicant acknowledges that it was not made within 21 days and states that he “wasn’t sure where to seek help about this scenario.”
In his preliminary submission, the Applicant confirmed that he was “not sure which department to contact as I suffered mental health problems due to sudden loss of income and job”. The Applicant further stated that he commenced preparing the Application 19 January 2024, “but wasn’t sure about time frames.” The Applicant stated that it took him a “while to finally submit it.”
During the Determinative Conference, the Applicant confirmed the explanations set out in the Application and his preliminary submission.
Lack of knowledge of unfair dismissal laws
I do not consider the Applicant’s lack of knowledge of unfair dismissal laws and the applicable timeframes to make an application, to be an acceptable or reasonable explanation for the delay.
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]
Medical Incapacity/Mental Health Condition
The Applicant has not adduced any medical evidence, let alone any ‘compelling’ medical evidence, that he suffers from a mental health condition and that it had a material impact upon his capacity to make the Application within the statutory time limit.[6]
In the absence of medical evidence supporting incapacity such to prevent the filing of the Application within the statutory time limit, I do not consider medical incapacity is an acceptable and reasonable explanation for the delay.
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.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[7]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[8]
The Applicant stated that following the termination of his employment, he attempted to contact the Respondent and submit messages to a WhatsApp Group to “protest” the termination of his employment. The Applicant stated that the Respondent did not return his calls and that he was blocked from the WhatsApp Group. The Respondent did not dispute the Applicant’s contentions and accepted that it was aware that the Applicant may commence the Application.
Having regard to the submissions of the parties, I accept that the Applicant took steps to contest the dismissal.[9] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
In summary, the Respondent contends that it terminated the Applicant’s employment following the termination of a commercial contract for the supply of security guards to a third party. The Applicant contends that the contract is ongoing, and that the Respondent continues to supply security guards to the third party.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
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 consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[10] Having regard to the matters I am required to take into account under s.394(3), 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 under s.394(3).
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
E Ahmad, Applicant.
S Soames, for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
19 March.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) 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 at [14].
[6] Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[8] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[9] Robyn Wishart v Noni B T/A Millers[2019] FWC 8063 at [25].
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
Printed by authority of the Commonwealth Government Printer
<PR772621>
0
0
0