Elrifai v Demons Formwork & Construction Pty Ltd

[2011] FWA 5090

[2011] FWA 5090

FAIR WORK AUSTRALIA

DECISION

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

Mr Ammar Abdul Aziz Elrifai
v
Demons Formwork & Construction Pty Ltd T/A Demons
(U2011/6213)

DEPUTY PRESIDENT BARTEL ADELAIDE, 2 AUGUST 2011

Termination of employment - extension of time

[1] On 23 March 2011 Fair Work Australia received an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) from Ammar Elrifai (the applicant). According to his application, Mr Elrifai’s employment was terminated on or about 24 December 2010, after receiving notice of termination two weeks earlier. The application was therefore filed 10 weeks outside the 14 day statutory time limit.

[2] Demons Formwork & Construction Pty Ltd T/A Demons is the named respondent to the application. No Employer Response Form has been filed and the respondent did not present for conciliation. The respondent’s phone numbers as provided by the applicant have been disconnected. There was no appearance by the respondent in the extension of time proceedings.

[3] The applicant now resides in Sydney, where he lived prior to obtaining employment with the respondent. He was represented by counsel with the permission of the Tribunal. Mr Elrifai did not attend the proceedings in Adelaide and the opportunity to present evidence via video link from Sydney was not taken up. An affidavit of the applicant in support of an extension of time being granted was presented at the hearing.

[4] The applicant relies on the following matters in support of the granting of an extension of time:

• The respondent did not provide written advice of the termination of employment;



• The applicant did not understand his legal rights;



• The applicant’s mental and physical health and family disruption affected his capacity or ability to attend to the matter of pursuing his termination of employment;



• English is not his first language;



• He was in difficult circumstances “financially and geographically”. 1



• Social isolation and separation from his spouse meant that he “was not in a position to fully appreciate (nor understand) any appeal process or the existence of that process”. 2

[5] The applicant stated that he saw a solicitor on 2 March 2011 in relation to separate but related proceedings and at that time was first alerted to the unfair dismissal remedy provisions of the Act. He stated that as a result of that meeting the application was filed.

[6] Section 394 of the Act deals with applications for an unfair dismissal remedy and provides that:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The 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).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(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.”

The reason for the delay

[7] The mental and physical health issues cited by the applicant are not specified as to their nature or duration and are not supported by any medical evidence. In these circumstances it is difficult to assess what weight should be given to these factors in the context of the 7 week delay until he saw his solicitor and became aware of his rights. In my view, it is incumbent on the applicant to present some evidence in relation to these matters, notwithstanding the absence of opposition to the application. The onus is on the applicant to satisfy the tribunal that an extension of time should be granted.

[8] The affidavit states that the applicant did not see a solicitor until 2 March 2011 and that, “As a result of my solicitor viewing the matter, he filed the [unfair dismissal application] 23 March 2011.” This statement tends to indicate that it took three weeks for the solicitor to file the application, but the date on which the applicant instructed his solicitor to file the application is not clear. 3

[9] The applicant’s ignorance of his legal rights may be a relevant consideration, but there is no evidence that the applicant took any steps to ascertain whether there were avenues he could pursue. Indeed it was only because he had an appointment with his lawyer on another matter that he became aware of his rights.

[10] I do not accept that the applicant’s financial difficulties are a valid reason for the delay, since filing fees can be waived in circumstances of financial hardship. 4

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

[11] I understand from counsel’s submissions 5 that the respondent company is engaged to perform certain work on construction sites. It is submitted that, “Mr Elrifai was not dismissed by an employee of Demons”.6 It is unclear who purported to dismiss the applicant but there is no indication that the applicant treated his employment as other than terminated at that time, being on or about 24 December 2010.

Any action taken by the person to dispute the dismissal

[12] There is no evidence that the applicant took steps to dispute the dismissal with the employer.

Prejudice to the employer

[13] There is no evidence of prejudice to the employer

The merits of the application

[14] The applicant was dismissed for allegedly sexually assaulting a female employee. He denies the allegation and contends that he was denied procedural fairness through the respondent’s failure to conduct a proper investigation or give the applicant an opportunity to respond to the allegation of sexual assault. It is submitted that the alleged assault occurred in September; that the matter was brought to the attention of one of the companies on the site where the applicant was working in October; and that he was dismissed in December when the allegation was first put to him. The alleged sexual assault is the subject of a criminal charge brought against the applicant which has yet to be determined.

[15] On the basis of this information the applicant would appear to have reasonable prospects of success. Clearly the Tribunal only has the benefit of the applicant’s side of the story but in circumstances where the respondent has declined to respond to the application it is the only material before the Tribunal and must be given due weight.

[16] There is a further issue as to whether the applicant has completed the qualifying period of employment. The s.394 application identifies the date that the employment commenced as “? June 2010” and the dismissal date as “approx 24 December 2010”. Submissions filed by the applicant’s solicitor identify the date of commencement as 5 June 2010 and the termination date as “about Wednesday 22 December 2010.” The absence of oral and/or documentary evidence from the applicant on this point is unfortunate.

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

[17] It is uncontroversial that the criteria in s.394(3) of the Act are based on the principles enunciated in Brodie-Hanns v MTV Publishing Limited. 7 On tracing back through the decisions relied on in Brodie-Hanns in support of the relevant principles outlined therein, it appears that the genesis of the provision in s.394(3)(f) of the Act is the decision of Wedesweiller & Ors v Cole & Ors, (1983) 71 FLR 256.

[18] In short, that decision concerned an application for an extension of time by 153 public sector employees employed in the Department of Social Security (DSS), each of whom had wages withheld for a period of time and who were seeking a judicial review of that decision. The applications in Wedesweiller were lodged approximately 12 months beyond the 28 day time limit. At the same time as the extension of time argument was heard, there were a further 190 applications by employees of the DSS which were listed for hearing on the same issue, which had been filed within time or in respect of which an extension of time had been granted by consent. The existence of those applications was persuasive. Sheppard J stated:

“Ordinarily one might regard an application for extension of time made almost twelve months after the expiry of the prescribed time as being too late, particularly where the prescribed period is as short as 28 days. That is the view I think I would have had in relation to these applications were it not for the fact that there are pending for hearing in the Court's list approximately 190 similar applications all arising out of similar incidents to those complained of by these applicants. It is that circumstance which, according to the submission of senior counsel, makes this case different from others.”

[19] Wedesweiller was based on the particular circumstances before the Court however based on the above passage I consider that the circumstance to which s.394(3)(f) of the Act is directed, when it refers to “other persons in a similar situation”, is the existence of other employees of the employer agitating the same or similar substantive issue/s. As such s.394(f) of the Act has no application in the present matter.

Conclusion

[20] The present situation is unusual in that the employer is most unlikely to attend the substantive hearing if the extension of time application is granted. This disposes of certain considerations which would otherwise be relevant to an extension of time application where the length of delay is significant, such as prejudice to the employer.

[21] However, taking all the relevant matters into account I am not persuaded that there are exceptional circumstances that warrant the exercise of the discretion to extend the time limit within which to file the application. It may be that that the applicant has suffered a considerable injustice by his dismissal, but he has not met the onus necessary to satisfy the Tribunal that the time limit should be extended. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Hearing details:

Final written submissions:

 1   5.3.2 of the affidavit

 2   5.6 of the affidavit

 3   PN [119] - [120]

 4   Regulation 3.07(7) Fair Work Regulations 2009

 5   Filed 17 May 2011

 6   Submissions of the applicant filed 17 May 2011 at point 12.

 7 (1995-96) 67 IR 298. See paragraph 1573 of the Explanatory Memorandum to the Fair Work Bill 2008

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