Fardeen Ali v TransGrid

[2017] FWC 4814

[2017] FWC 4814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Fardeen Ali
v
TransGrid
(C2017/2658)

COMMISSIONER PLATT ADELAIDE, 18 SEPTEMBER 2017

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

[1] Mr Fardeen Ali has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by TransGrid on 28 March 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 19 May 2017.

[3] Mr Ali’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I was advised by HR Business Partner, Lia Wakim to contact the EAP Employee Assistance Programme.

I managed to make two appointments with them and there seems to be no dialogue to my complaint. Evidence of this meetings (sic) are available upon request.”

[4] TransGrid filed a F8A Employer Response on 13 July 2017 and raised a jurisdictional objection but did not identify the application was lodged out of time. This decision only deals with the extension of time issue.

[5] On 24 August 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 11 September 2017, this date was amended to 13 September 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Ali and TransGrid were directed to provide an outline of argument by 1 September 2017.

[6] Mr Ali provided a written submission summarised as follows:

● He was notified of the dismissal on 28 March 2017.
● His application was delayed by his access of services by TransGrid’s EAP provider.
● He believes that his dismissal was unfair from a merit and procedural perspective as he was not provided with a reason for the termination.

[7] Mr Ali also filed a Certificate of Attendance dated 10 May 2017 advising that he had attended Davidson Trahaire Corpsych’s Paramatta office for appointments on 3 April 2017 and 5 May 2017.

[8] TransGrid did not file any material.

[9] A hearing was conducted by way of telephone conference on 13 September 2017. A sound file record of the telephone conference was kept. Mr Ali represented himself and Ms Sarelas represented TransGrid.

[10] Mr Ali’s position is summarised as follows:

● On 3 April 2017, he emailed TransGrid and complained that his dismissal was unfair and also sought that an independent enquiry be undertaken over ‘adverse action taken’.
● On 4 April 2017, TransGrid responded to Mr Ali’s contentions and rejected the dismissal was unfair or that he had been adversely affected.
● On 18 April 2017, Mr Ali sought TransGrid to respond to each point raised in his 3 April 2017 letter and provided supporting evidence. Mr Ali questioned his final payment and sought a copy of his contract of employment.
● During the hearing Mr Ali was unable to articulate the basis of a breach of s.340 or s.344 of the Act.
● In respect of his complaint of a breach of s.351 of the Act, Mr Ali suggested that he was not promoted due to his race and colour.

[11] At the telephone conference, TransGrid contended that Mr Ali was dismissed during his probationary period and that the dismissal was not unfair, and opposed the hearing of the matter based on the jurisdictional issue.

[12] During the hearing, TransGrid also tendered the following documents:

● A letter dated 3 April 2017 from Mr Ali to TransGrid titled ‘Unfair dismissal - Termination of Employment. Mr Ali asked a number of questions surrounding the termination including, amongst other questions, why he was not notified of the reason for termination, why he was not given the opportunity to respond and why he was refused access to a support person. Mr Ali suggested his dismissal was unfair and may have constituted adverse action.
● A letter from TransGrid to Mr Ali dated 4 April 2017 responding to Mr Ali’s letter of 3 April 2017 reiterating that a meeting had been held, he had been terminated within the 6 month probation period, the termination was consistent with his contract of employment and further that TransGrid does not consider the termination as constituting unfair dismissal or that he had been adversely affected.
● A letter dated 18 April 2017 from Mr Ali to TransGrid requesting a more detailed response and disputing that his entitlements had been incorrectly paid.

[13] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[14] This general protections application by Mr Ali was made 31 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[16] I accept that Mr Ali contested the basis of his dismissal on 3 April 2017 and again on 18 April 2017. Whilst the majority of Mr Ali’s complaints relate to the dismissal being unfair, the reference to adverse action indicates to me that Mr Ali contemplated a general protections action as early as 3 April 2017.

[17] It is clear that TransGrid rejected Mr Ali’s position on 4 April 2017.

[18] Whilst Mr Ali has explained the period of delay between the date of his dismissal and 4 April 2017, at that time he should have realised he was not going to resolve his claim directly with TransGrid.

[19] He then waited a further 45 days to lodge his claim.

[20] Mr Ali suggests he delayed making his claim whilst he accessed the TransGrid Employee Assistance Program (EAP). Whilst I accept that Mr Ali accessed TranGrid EAP services, I do not see that as an exceptional circumstance. There is no evidence before me that Mr Ali was suffering from a medical condition that impacted his capacity to lodge a claim. The correspondence he sent to TransGrid also indicates a capacity to lodge a claim.

[21] Even if I accept the delay until his final EAP meeting, Mr Ali has not explained why he waited a further two weeks before lodging his claim.

[22] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[23] There is no submission that the granting of an extension of time represents prejudice to TransGrid.

[24] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[25] In terms of the merits of the application, the applicant was unable to clearly articulate any basis for a claim under s.340 or s.344 of the Act and the evidence in relation to the allegation of the s.351 of the Act breach was simply that others had been promoted and they were not of the same race and colour of Mr Ali. Despite this, I have regarded the merits as a neutral factor.

Conclusion

[26] For the reasons I have set out above, I am not satisfied that Mr Ali’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr F.Ali, the Applicant.

Ms A.Sarelas on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

September 13.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR596136

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596135>