Fouad Ramadan v WSI Logistics Pty Ltd

[2021] FWC 2984

[2021] FWC 2984

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fouad Ramadan
v
WSI Logistics Pty Ltd
(U2021/3310)

DEPUTY PRESIDENT BOYCE SYDNEY, 26 MAY 2021

Application for an unfair dismissal remedy.

Introduction

[1] This decision was made on an ex tempore basis on transcript on 20 May 2021. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An Order giving effect to this decision was published on 20 May 2021 in PR730048.

[1] On 16 April 2021, Mr Fouad Ramadan (Applicant) filed a Form F2 (Unfair Dismissal Application) with the Fair Work Commission (Commission) via postal mail. Pursuant to the provisions of Part 3-2 of the Fair Work Act 2009 (Act), the Applicant claims that he was dismissed unfairly by his employer, WSI Logistics Pty Ltd (Respondent).

[2] An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect.

[3] It is not in dispute between the parties that the Applicant was dismissed on 25 January 2021. As the Commission received the Applicant's Unfair Dismissal Application on 16 April 2021, the Applicant is 61 days out of time. To be within time, the Applicant should have lodged his Unfair Dismissal Application on 15 February 2021. I note that it is also 82 days since the Applicant was advised of his dismissal. Again, there's no dispute between the parties that the Applicant lodged his application 61 days outside of the statutory deadline.

[4] The matter was heard before me on 20 May 2021. The Applicant represented himself, and Mr Andrew Costi, Managing Director, appeared for the Respondent.

Matters to be taken into account

[5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.394 of the Act, which reads:

394 Application for unfair dismissal remedy

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[6] In taking the matters set out in ss.394(3)(a) to (f) into account, I am required to determine whether I am satisfied as a jurisdictional question as to whether there are exceptional circumstances warranting an extension of time.

[7] The test for “exceptional circumstances” establishes a high bar or “high hurdle” for an applicant, 2 albeit a decision to extend time involves an exercise of discretion.3 The key case, in terms of the meaning of the term “exceptional circumstances”, is Nulty v Blue Star Group Pty Ltd (Nulty), a decision of the Full Bench of the Commission. It relevantly states:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.

(emphasis added)

[8] I note that in Nulty, the Full Bench identified that mere ignorance of a statutory time limit is not an exceptional circumstance, meaning that even where an applicant does not understand or does not know that the 21-day period applies, this is not something in and of itself that would give rise to satisfaction as to exceptional circumstances. The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 4

[9] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may well be regarded as exceptional. 5

Reason for the delay

[10] The Applicant submits that the reason for the delay in filing his Unfair Dismissal Application is representative error or neglect. Reliance on representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark), 6 and in Davidson v Aboriginal Islander Child Care Agency.7 A subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered”.

(emphasis added)

[11] The principles espoused in Clark have been considered and applied in various other decisions of this Commission. 8 I equally rely upon those principles in making this decision.

[12] The Applicant states that:

“On 25 January 2021 I spoke to a lawyer and explained my situation and they said it would be handled by their office. Weeks and months went by of being ignored by the law firm. Then finally I get a message on 22 March 2021 stating that they just looked at the case again and are saying I don't have a case but from the beginning after providing text messages between myself and my employer and doctors’ certificates they said it’s a very strong case. I’m concerned they forgot to lodge it and it’s the reason why I was ignored for so long and then to say I don’t have a case.”

[13] I highlight that the Applicant says that as at 22 March 2021 he was purportedly made aware by his lawyer that they would not be preparing or filing an unfair dismissal application on his behalf. That said, the Applicant gives no reasons whatsoever as to any further reason for delay between 22 March 2021 and 16 April 2021.

[14] There is no evidence from the Applicant's purported lawyer going to the matters that the Applicant asserts has occurred. Indeed, there is no evidence that the Applicant ever formally engage a lawyer to act on his behalf.

[15] When I asked the Applicant during the hearing as to the name of his lawyer, he could only tell me that his lawyer’s first name was “Mona”. I am informed by my Associate that during the course of issuing my ex tempe decision on 20 May 2021, the Applicant sent a further email to my Chambers indicating that the relevant law firm he had engaged was [email protected].

[16] Even if it be accepted that the Applicant found out on 22 March 2021 that his lawyer would not be preparing and filing an unfair dismissal application on his behalf on 22 March 2021, there is no evidence of the steps taken by the Applicant prior to the expiration of the 21-day time limit, and/or prior to 22 March 2021, that he took to chase up his lawyer as to the filing of his Unfair Dismissal Application.

[17] Having regard to the above factual findings, I am not satisfied that representative error or neglect has been visited upon the Applicant in terms of any delay in filing his Application. Given there are no other reasons proffered by the Applicant as to his delay, the Applicant’s reason for delay does not weigh in favour of satisfaction as to exceptional circumstances.

Neutral Considerations

[18] In relation to s.394(3)(b) of the Act, there is no dispute that the Applicant was terminated by the Respondent on 25 January 2021. Nor is there any dispute that the Applicant was aware that he was terminated that day. I therefore consider this to be a neutral consideration.

[19] In relation to s.394(3)(c) of the Act, I am required to take into account any action taken by the Applicant to dispute his dismissal. There does not appear on the evidence to be any particular action taken directly by the Applicant to dispute his dismissal with the Respondent prior to filing his Unfair Dismissal Application. I therefore consider this to be a neutral consideration.

[20] Neither party addressed me on s.394(3)(d) of the Act concerning prejudice to the Respondent if the application to extend time is granted. Mere absence of prejudice to an employer in extending time is not a factor that automatically weighs in favour of the grant of an extension of time. In this matter, I consider it to be a neutral consideration.

[21] In relation to s.394(3)(f), I am required to take into account fairness as between the Applicant and any other persons in a similar position. Neither party made any submissions as to this factor, nor is there any evidence going to the issue. I consider it a neutral consideration.

Merits of the Application

[22] Section 394(3)(e) of the Act concerns the merits of the Applicant’s Unfair Dismissal Application. I note that the Respondent has provided evidence of a warning letter issued to the Applicant on 29 July 2019, and a warning letter issued to him on 7 July 2020. The second letter talks about arriving late for work, being unnecessarily argumentative and displaying a poor attitude. A further letter to the Applicant dated 19 January 2021 relevantly reads:

“You failed to contact your manager and advise that you are running late for work. You have been warned previously about your lateness and the importance of communication on this matter. You have received 2 previous warning letters for a range of workplace issues, with the biggest issue being your poor work attitude. Please be advised that any further incidents of any nature will result in the termination of your employment with this company.”

[23] Mr Michael Hamilton, General Manager of the Respondent, in an email to Mr Costi dated 13 May 2021, goes through various events that occurred (involving the Applicant) on 15, and 19 to 22 January 2021. In particular, Mr Hamilton’s email says that there was no communication from the Applicant in relation to his absence on 21 January 2021.

[24] I note that the Applicant was terminated via text message, and there does not appear to have been any procedural fairness in affecting his dismissal. However, equally, if the Respondent’s evidence stands up as to the reason for the Applicant’s termination, that would appear to be a valid reason for the Applicant’s dismissal. Ultimately, the Commission would have to weigh up all of the facts and circumstances to determine whether the Applicant’s dismissal was indeed harsh, unjust or unreasonable.

[25] The principles stated Kyvelos v Champion Socks Pty Ltd,⁹ albeit in relation to a predecessor of the Act, still remain good law and are worth repeating here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 10

[26] The thrust of the Applicant’s Unfair Dismissal Application is that he was terminated by the Respondent for being on sick leave. I note that this argument is not without merit, however, that said, it appears as though there were repeated issues concerning the Applicant's lateness and attitude, and there were also issues as to the method of communication by which the Applicant notified the Respondent of his repeated absences from work.

[27] Some of the conduct by the Applicant appears to be in clear contravention of s.107(2)(a) of the Act concerning the Applicant’s obligations to notify the Respondent of his absences from work as soon as practicable.

[28] All in all, whilst the fact that the Applicant’s Unfair Dismissal Application is not totally without merit, the Respondent’s case for his dismissal being fair (in all of the circumstances of the case), is equally not without merit. In my view, the merits of the Applicant’s Unfair Dismissal Applicant are a neutral consideration in this matter.

Conclusion

[29] Taking into account the evidence and the submissions of the parties, and the legal principles that I am required to apply as set out in these reasons for decision, I am unable to conclude or be satisfied as to the existence of “exceptional circumstances” warranting the grant of an extension of time for the Applicant to file his Unfair Dismissal Application.

[30] The Applicant's Unfair Dismissal Applicant is dismissed, and an Order to that effect will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730131>

 1   Fair Work Act 2009 (Cth) s.394.

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 3   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 4   [2019] FWCFB 2384 at [16] – [20].

 5   See: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 (at [13]). See also: Griffiths v The Queen (1989) 167 CLR 372 at 379; 87 ALR 392; 41 A Crim R 163; 63 ALJR 585; [1989] HCA 39 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 6 (1997) 74 IR 413.

 7 (1998) 105 IR 1.

 8   See: Officeworks Ltd v Parker[2014] FWCFB 5779 at [14]. See also: Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647.

9 (1995) 67 IR 298.

 10   Ibid at 299 to 300.