Halil Goren v Tradelink Pty Limited

[2021] FWC 5386

[2021] FWC 5386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Halil Goren
v
Tradelink Pty Limited
(U2021/5271)

DEPUTY PRESIDENT EASTON SYDNEY, 31 AUGUST 2021

Unfair dismissal application filed out of time –exceptional circumstances – information of the termination withheld from the Applicant by his family – extension of time granted.

[1] Mr Halil Goren’s employment effectively ceased on 28 April 2021 after he did not return to work from an extended period of approved unpaid leave. Tradelink Pty Limited (Tradelink) sent an email and then a letter to Mr Goren on 28 April 2021 ‘confirming’ that Mr Goren had resigned his employment. Mr Goren was overseas at the time and relied on his adult children to look after his affairs in Australia. The evidence before me is that Mr Goren’s adult children, with full knowledge of the 21-day time limit, chose not to tell Mr Goren that his employment had ceased until several weeks later when Mr Goren returned to Sydney and cleared COVID hotel quarantine. Mr Goren commenced his unfair dismissal claim within one week of him first becoming aware that his employment had ceased.

[2] Tradelink maintain that Mr Goren resigned his employment, and Mr Goren claims that he was dismissed. In this preliminary decision I will generally refer to the employment having ‘ceased’ in recognition of this unresolved contest. Section 394(1) of the Fair Work Act 2009 (“the Act”) required Mr Goren make his application for an unfair dismissal remedy within 21 days after his alleged dismissal took effect, being midnight on 19 May 2021. Mr Goren did not make his application until 16 June 2021.

[3] This decision will only deal with the out of time issue. I must determine whether there were exceptional circumstances within the meaning in s.394 of the Act, and if so, whether I should exercise my discretion to extend the time for Mr Goren to make his application.

[4] For the reasons that follow, I am satisfied that there were exceptional circumstances and that I should grant Mr Goren an extension of time.

Background

[5] Mr Goren (also known as Mr Halil Ozdimag) worked for Tradelink as a delivery driver. In September 2020 he applied for and was granted a period of extended unpaid leave to travel back to Turkey.

[6] The Tradelink Enterprise Agreement (NSW & ACT) 2019 applied to Mr Goren’s employment. Clause 30 of the Agreement allows employees to apply for extended unpaid leave of up to 12 months. Clauses 30.4 to 30.6 are in the following terms:

“30.4 While on a period of unpaid leave, an Employee will not accrue annual leave or personal/carer's leave, and the period of unpaid leave will not count as service for the purposes of long service leave, notice of termination or redundancy pay. However, unpaid leave will not break the Employee’s continuity of service.

30.5 If an Employee wishes to return to work before the end of their period of unpaid leave, the Employee must provide the Employer with a minimum of one month’s notice.

30.6 Upon the conclusion of the unpaid leave, the Employer will endeavour to find what the business deems to be a comparable position for the Employee to return to. The Employer makes no guarantee that the position will have the same hours or be in the same location. Where the Employee rejects the position offered, the Employee will be taken to have resigned.”

[7] By the terms of this enterprise agreement an employee who asks for such leave essentially forfeits their position with Tradelink, but the leave does not sever the employment itself. Clause 30 allows an employee to apply for a position at the end of their period of unpaid leave and, perhaps, requires Tradelink to provide a “comparable position” for the employee upon their return. Tradelink makes no guarantee that the position upon return will have the same hours or will be in the same location.

[8] In September 2020 Mr Goren signed an Application for Unpaid Leave of Absence (unpaid leave application) document which included the following:

“Return from Leave

In view of your valued contribution to our operations, the business will endeavour to identify a comparable position for you to return to following your unpaid leave of absence. To this end, I would ask that you contact the Branch Manager at Alexandria one month prior to 21 March 2021 to discuss any potential employment opportunities. If you choose not to accept any position offered to you or if you fail to make any contact with the Branch Manager, it will be taken that you have resigned from the business.

Halil, your commitment, dedication and contribution to Tradelink is appreciated. On behalf of the Company, I wish you all the best in your endeavours over the next six months and I look forward to the prospect of welcoming you back to Tradelink in March 2021.”

(emphasis added)

[9] There is some considerable dispute, though very little evidence so far, about the terms on which Mr Goren agreed to take leave. Tradelink relies upon the document signed by Mr Goren which was very clear that if he failed to contact Tradelink prior to 21 March 2021 then his employment would cease by way of resignation.

[10] On one view, when Mr Goren signed this document, he committed to resigning his employment if he failed to make any contact with the Branch Manager prior to 21 March 2021.

[11] Mr Goren submits that when he signed the agreement in September 2020 he did not know what he was signing. Mr Goren submits that he was not given a copy of the document that he signed. Perhaps more significantly, Mr Goren submits that there was a verbal agreement made that he could take unpaid leave for as long as he wanted and that his position was guaranteed upon his return. Mr Goren’s evidence filed in support of his extension of time application did not refer to the events of September 2020 at all.

[12] Mr Goren did not contact Tradelink one month before 21 March 2021 as required. On 19 March 2021 Mr Goren instructed his son, Mr Firat Goren, to contact Tradelink. Firat Goren rang Mr Matthew Hamilton, who was Mr Goren’s direct supervisor, and then sent Mr Hamilton an email in the following terms:

“Hi Matthew,

I spoke with you earlier on the phone regarding my father Halil, the original date of return was meant to be early May however with the small rise of cases in Turkey the government will ceased any routes to/from Turkey however this is not official. They advised stated early June will commenced flight routes but once again this is not official just talks.

Just wanted to say that my father is in good health and always asks if you or anyone from the Tradelink family made contacted as he is eager to get back into work and start straight away.

…”

[13] Mr Hamilton’s version of the conversation with Firat Goren is as follows:

“On 19 March 2021, the Applicant’s son, Firan (sic) Goren, contacted me but I wholly dispute his version of the content of that discussion. Mr Goren did not advise me that he had been instructed by the Applicant to communicate with him on his father’s behalf, he did not advise me that the Applicant could not make international calls from Turkey and he did not advise me that his father was looking forward to resuming his employment. Mr Goren advised me that his father was still in Turkey and he didn’t have a date to return to Australia and he asked me what the position with his father’s employment was. I advised him that I didn’t know and I never gave any insights to the Applicant’s son or anyone else about the prospects of the Applicant being re-engaged.”

[14] Mr Goren submits that it was just a coincidence that he instructed his son to contact Mr Hamilton two days before the deadline referred to in the September 2020 document. I make no findings in this regard but observe that Firat Goren’s email is not inconsistent with Mr Hamilton’s account of their conversation, and it is consistent with Mr Goren Snr having knowledge of his obligations under the agreement he signed in September 2020. At this stage I prefer Mr Hamilton’s account of the conversation, particularly where Mr Hamilton says that Firat Goren “asked me what the position with his father’s employment was”.

[15] In this regard, I am prepared to accept for present purposes that Mr Goren was speaking with his son about his employment in at least March 2021. However, the conversation in March 2021 could not have been about Tradelink’s correspondence to Mr Goren sent in April 2021 and there is no evidence of Mr Goren speaking to his children when he was overseas about correspondence received from Tradelink in April and May 2021.

[16] On 7 April 2021 Tradelink sent an email to what it thought was Mr Goren’s current email address in the following terms:

“Hi Halil

We have had communication from your son recently regarding your return to work after your extended leave without pay. I have attached a copy of the signed letter for your reference.

We would like to talk to you in this regard at your earliest convenience. Would you please call or email Matt Hamilton (contact details are below).”

[17] It appears that this email never reached Mr Goren or his family. Tradelink cannot be criticised for this. Tradelink sent the email to the same email address used for sending payslips to Mr Goren during his employment, being a hotmail address. Mr Goren stopped using this email address in November 2020 but took no steps to notify Tradelink of his new email address.

[18] After not receiving any response to the email of 7 April 2021 Tradelink sent a further letter by email on 28 April 2021 in the following terms:

“CONFIRMATION OF RESIGNATION

As per our letter regarding your unpaid leave of absence dated 10 September 2020, your leave was expected to cease on 21 March 2021 and in accordance with the terms of that letter you were to contact the Branch Manager at least one month prior to discuss any potential employment opportunities at that time.

Further, on 7 April 2021, we sent an email to your registered email address we have on file and your payslips are sent to - [email protected], requesting you make contact with your manager in regards to any return to work possibilities and to date we have not received any communication from you.

As you failed to make contact with the Branch Manager and in accordance with the terms and conditions of your application for unpaid leave of absence, we have deemed you have resigned from the business.

We will note today, being 28 April 2021 as your last day of work with our organisation.

Thank you for your continued support to our company and I wish you well in your future career endeavours.”

[19] A copy of the letter was sent to Mr Goren’s home address in Sydney. Mr Goren’s daughter, Ms Hayriye Goren, gave evidence that she became aware of the letter on 3 May 2021 when she received a copy in the mail.

[20] On the same day Ms Goren made contact with Tradelink to try to discuss Mr Goren’s employment.

[21] On 6 May 2021 Tradelink send a further letter to Mr Goren’s home address that included the following:

“Further to our letter regarding your unpaid leave of absence dated 10 September 2020, and our subsequent letter confirming your resignation dated 28 April 2021 we have recently received communication from your family.

For clarification, your period of unpaid leave expired on 21 March 2021. To date we have not received a request from you to extend your leave beyond this date nor have we granted an extension of this leave of absence. The letter we provided you granting the leave of absence which you signed 11 September 2020, provided clear instructions on the process around potential employment opportunities upon your return.

In accordance with the terms of that letter you were to contact the Branch Manager at least one month prior to your return to discuss any potential employment opportunities at that time, which you failed to do.

On 7 April 2021, we sent an email to your registered email address we have on file and your payslips are sent to - [email protected], requesting you make contact with your manager in regards to any return to work possibilities and to date we have not received any communication from you.

As you failed to comply with company procedure and in accordance with the Tradelink Enterprise Agreement (NSW & ACT) 2019, by which you are covered (clause 30 – Unpaid Leave), we are proceeding with termination of your employment by way of resignation.”

[22] The evidence from Mr Goren’s children was that neither of them told their father about his alleged dismissal until after Mr Goren was out of quarantine. Their evidence was that they made a conscious decision not to tell Mr Goren because he had Ischaemic heart disease in 2018 that required stents.

[23] In this regard, Mr Goren provided a medical report from Dr Alaaddin Abdullah Emin in the following terms:

“Halil Ozdimag is my patient whom I have been seeing form the last 15 years, he was diagnosed with Ischaemic heart disease back in 2018 while he was in Turkey, he has stents now as a treatment for his multi vessel blockage.

Due to his above mentioned medical problems, I have recommended and emphasises to his daughter with every attendance to our clinic that her father needs to be supervised during activities that causes more emotional and physical distress.”

[24] In May 2021 Ms Goren actively pursued Tradelink about the cessation of Mr Goren’s employment. There is no evidence that Mr Goren’s actions were undertaken with Mr Goren’s knowledge, even though Ms Goren told Tradelink that was acting on his behalf.

[25] Ms Goren sent SMS messages to Mr Hamilton on 3 May, 6 May, 7 May and 13 May “on behalf of [her] father”. Ms Goren’s SMS messages were as follows:

“[3 May] Hi Matt, I’m Hayley. The daughter of Halil Ozdimag- your employee. We’ve recently received a letter stating that you guys have decided to assume he has resigned from his position? No he hasn’t as he is stuck overseas until 23rd May. I would really like to talk to you about this.

I’ve discussed this with my brother who actually called you to explain what’s going on regarding flight cancellations prior to the 7^th April and the fact that my dad is actually stuck there. These cancellations were out of our hands. I need you to contact me ASAP. Thanks.

This is known as unfair dismissal.

[6 May] Hi Matt. I’m looking forward to receiving a message from you regarding a time and date to talk. Thanks.

[7 May] Good morning again Matt. You didn’t message me yesterday about organising a time for the chat when we spoke. I’m hoping to receive a message from you regarding a time and date to talk. Thank you.

[13 May] Hi Matt. Again, you have failed to respond to my numerous messages. This is very unprofessional of the company. Given my father has worked there since 2015, we would have expected more professionalism. During this challenging times, my father has not resigned. And we have advised this to you the last time we spoke in March. Your company has neglected to follow up and inquire about my fathers physical wellbeing when he was injured while working. Your company has failed to live up to your end. On my behalf of my father, who is stuck overseas against his will due to the pandemic, I will be taking this further.”

[26] Mr Hamilton gave evidence that “whilst I was at home one evening with my wife, I received a phone from Mr Goren’s daughter from a private number where she was threatening towards me and abusive.” Mr Hamilton did not reply to any of Ms Goren’s messages.

[27] The F2 Application filed in June 2021, prepared by Ms Goren under her father’s direct supervision, includes the following:

“On my behalf, my daughter contacted the Fair Work Commission (dated on the 3 May 2021) to seek legal advice regarding dismissals; protections of workplace rights; and workplace bullying, is documented. She spoke with a Client Representative from the Delivery Branch by the name of Andrea. She was advised to fill out a request. Upon advising the representative that I am stuck overseas, she was disheartened to hear that I had to be physically present for the legal advice to take place. My daughter contacted me in an effort to see if a conference call could be possible. However the mobile device I was using didn’t allow it to occur. When my daughter was advised that there was a 21-day timeframe, she pursue to log an application in hopes to secure an appointment upon my arrival for the 25 May 2021 at 11:30am.”

[28] This portion of the application is unsatisfactorily ambiguous and appears to be consistent with Mr Goren being in contact with his family about the cessation of his employment whilst overseas, particularly the words “my daughter contacted me in an effort to see if a conference call could be possible.” There is no other evidence that establishes that Mr Goren knew his employment had ceased before June 2021.

[29] Eventually Mr Goren flew home and spent time in quarantine because of COVID restrictions. During his time in quarantine Mr Goren had access to his mobile phone and was in regular contact with his family.

[30] Mr Goren was released from quarantine on 10 June 2021. On 11 June 2021 he was told that his employment had ceased and only a few days later on 16 June 2021 Mr Goren made his application for an unfair dismissal remedy.

Section 394 – Exceptional Circumstances

[31] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)).

[32] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. 1 The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[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.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[33] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances, viz:

“(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.”

[34] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally, the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);

(b) the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);

(c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).

Reason for the delay

[35] I am required to take into account “the reason for the delay”. 2 The test invariably applied is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an explanation is not measured in a vacuum: firstly, it must be assessed as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.

[36] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.³ That said, if an applicant does not have a credible explanation, the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[37] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.

[38] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired. 4

[39] Mr Goren relies on the following matters to explain the delay:

a) English is his second language and he relies on his adult children to assist him in understanding and responding to legal matters.

b) He was undergoing reconstructive dental treatment in Turkey.

c) He was delayed overseas. His original return date was 4 May 2021, however his flights from Turkey were changed and cancelled many times by his airline.

d) He arrived in Australia on 27 May 2021 and was in mandatory hotel quarantine until to 10 June 2021.

e) He was not able to contact Tradelink regarding his return from leave plans as his overseas phone service provider did not allow him to make calls to Australia. The Applicant told his son, Firat Goren, to contact Tradelink’s Branch Manager, Mr Hamilton by telephone and to then send a follow up email.

f) Firat Goren contacted Mr Hamilton on 19 March 2021 to advise that Mr Goren’s flights had been delayed but that Mr Goren was looking forward to resuming his employment upon arrival.

g) Once back in Australia he was under ‘great distress and in survival mode during the quarantine period due to his medical condition, being isolated and having a fear of heights’.

h) His family withheld information relating to his dismissal due to his heart condition. This claim was supported by a report from Mr Goren’s family doctor who advised that he needed to be supervised during any activity and/or situation that would pose a risk to his physical and emotional well-being.

i) He was not aware of the dismissal until 11 June 2021 after being told by his daughter and made enquiries to his employer on the same day.

j) He could not file a Form F2 online as he was not computer literate and had to wait for his daughter to assist him.

[40] Almost none of the above matters are exceptional circumstances. Mr Goren voluntarily travelled overseas, there is no suggestion that he could not afford his dental treatment unless he went to Turkey, he did not book flights to return home in time (see below) and so his delay in returning to Australia was not entirely beyond his control, he could have and should have allowed for 14 days of quarantine, his language and computer difficulties are not exceptional circumstances and he received extensive assistance from his adult children.

[41] However, two specific circumstances are exceptional:

(i) Firstly, that the employment had lawfully ceased without Mr Goren’s apparent knowledge; and

(ii) Secondly, that Mr Goren then did not know that his employment had ceased for several weeks because of the actions of a third party, being Mr Goren’s adult children.

[42] I say apparent knowledge at this stage of the proceedings because Tradelink’s case is that Mr Goren’s employment ceased when he knowingly failed to meet the requirements of the September 2020 agreement. If this is correct then Mr Goren must have returned to Australia in May 2021 in full knowledge of that fact that his employment had ceased by his own actions.

[43] If Mr Goren’s claim that Tradelink terminated his employment by letter 28 April 2021 is correct, then it must follow that the termination was effective at least by the time it was received by Mr Goren’s household on or about 3 May 2021.

[44] The Full Bench in Burns v Aboriginal Legal Service of Western Australia (Inc) 5 held that “a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated”.6 Notice of termination of employment may be given to an agent of an employee who has actual or ostensible authority to receive that notice.7 If Mr Goren’s children did not have actual authority to receive Tradelink’s notice then they clearly had ostensible authority to do so.

[45] I accept that it is highly unusual for an employee’s family to know of a dismissal without the employee themselves knowing that they are dismissed. Several factors collided to result in Mr Goren apparently not knowing that he had been dismissed: he was on a long period of leave, so he was not otherwise expected to attend for work, he was on unpaid leave so he was not expecting any payment from the employer, he was overseas and did not make any arrangements for the employer to be able to contact him directly and he relied upon intermediaries, his children, to pass on information from his employer.

[46] Mr Goren’s case necessarily is that his adult children were responsible for his delay in making his application. Mr Goren’s adult children received the letters from Tradelink confirming that Mr Goren’s employment had ceased, they sought legal advice on behalf Mr Goren and they made contact with Tradelink on numerous occasions on behalf of Mr Goren.

[47] Tradelink submitted that “it is entirely implausible that the applicant was not advised of or did not have a reasonable opportunity to know of the confirmation of his resignation when his family became aware of it on 3 May 2021.” Tradelink led no evidence that could be understood to contradict the evidence from Mr Goren and his family, which is not surprising in the circumstances. I share Tradelink’s scepticism about some aspects of the evidence tendered on behalf of Mr Goren but recognise that the only finding reasonably available to me on the evidence is that Mr Goren did not know that his employment had ceased until 11 June 2021 when he was told by his daughter.

[48] I am prepared to accept that this scenario is highly unusual and constitutes exceptional circumstances. I am less prepared to accept that this scenario warrants an extension of time.

[49] Mr Goren’s case is similar to a representative error case. In representative error cases the Commission tends to focus on whether any part of the delay can be attributed to an applicant’s own conduct. Hypothetically if the actions of Mr Goren’s children were the actions of a legal practitioner or a union, the Commission’s usual approach would be to sheet home all of the delay to the lawyer/union and probably make an order extending the time for filing.

[50] On the other hand, if Mr Goren left the country for an extended period and left his children to manage his legal affairs and protect his legal interests, and if his children cause detriment to Mr Goren by their acts or omissions, then Mr Goren must accept the good with the bad from that arrangement.

[51] Two key things must be said regarding the acts and omissions of Mr Goren’s children:

1) The adult children acted in full knowledge of the unfair dismissal jurisdiction and the 21-day time limit, and they set about a course of action that knowingly resulted in Mr Goren’s claim being lodged significantly late; and

2) They acted in apparent reliance on general medical advice from Mr Goren’s treating doctor and the evidence is they decided not to tell their father about the cessation of his employment until they could do so face to face.

[52] Having found that exceptional circumstances exist, I have a discretion to grant an extension if I am satisfied that it is fair and equitable to do so. The reasons for delay do point towards exercising my discretion in Mr Goren’s favour, but do not strongly point that way. I am concerned that Mr Goren’s family consciously flouted the time limits in the Act. But for the advice of Dr Alaaddin Abdullah Emin, Mr Goren’s long-time treating doctor, I would not be inclined to grant the extension.

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

[53] I am also required to take into account “whether [Mr Goren] first became aware of the dismissal after it had taken effect”. 8

[54] I accept the somewhat obvious proposition that exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date. This case highlights the need for the Commission to properly consider how and why there was a delay in an applicant becoming aware of a dismissal.

[55] The reason for the delay centres upon Mr Goren’s assertion that he first became aware of the alleged dismissal on 11 June 2021. It is not necessary to repeat my deliberations because the two separate considerations are so intermingled in the present matter.

Action taken by the person to dispute the dismissal

[56] In taking into account “any action taken by the person to dispute the dismissal” 9 I note that Mr Goren himself took no steps to dispute his alleged dismissal until one week before making his application in June 2021.

[57] I note that Mr Goren’s children took issue with Tradelink’s correspondence to Mr Goren. The actions of Mr Goren’s children are not a factor that separately supports the existence of exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.

Prejudice to the employer

[58] I must consider the “prejudice to the employer (including prejudice caused by the delay).” 10

[59] Despite there being a substantial delay I cannot identify any prejudice that would accrue to Tradelink if an extension of time were to be granted.

[60] Mr Goren was on extended unpaid leave at the time his employment ceased. The factual dispute is likely to be relatively narrow and will probably focus on the events of September 2020 more than the events in 2021.

[61] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[62] Section 394(3)(e) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.

[63] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. 11

[64] In this context it is sufficient that an applicant establish that their claim is not without merit. 12 The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.13

[65] Mr Goren does not have a strong case, although I am prepared to accept that he has an arguable case. Mr Goren signed a written agreement in September 2020 that clearly put an obligation on him to make contact with Tradelink at least one month before the end of the six-month period of approved unpaid leave. Tradelink was not obliged to keep Mr Goren’s position open for him and Tradelink was entitled to require Mr Goren to give a reasonable amount of notice of his intention to return so that Tradelink could make enquiries and assessments about available positions.

[66] The evidence indicates that on 5 February 2021 Mr Goren booked flights to return to Australia. Despite Mr Goren’s unpaid leave finishing on 21 March 2021, Mr Goren booked flights what would have resulted in him arriving in Australia on 4 May 2021. Taking quarantine requirements into account, the earliest he could have returned to work was 19 May 2021, being almost 2 months after his approved leave had finished. As it happened Mr Goren’s flights were delayed by a few weeks because of a COVID lockdown in Turkey. In this situation Mr Goren cannot properly blame airline delays during a global pandemic for his problems in returning to work.

[67] Much will depend, therefore, on the evidence about the meeting in September 2020 and whether or not Tradelink had approved a longer period of unpaid leave despite what was written in the document that Mr Goren signed. Mr Goren claims he didn’t know what he was signing and was therefore not aware of the requirement to contact Tradelink one month before 21 March 2021. Mr Goren only made submissions about his state of mind and his understanding of the leave arrangements – he did not give evidence at all about the events of 2020. It will be difficult for Mr Goren to explain how he had no knowledge of the requirement to contact Tradelink one month before 21 March and yet he instructed his son to make contact with Tradelink on 19 March 2021 by telephone and to send an email on the same day.

[68] The arrangements apparently made between Mr Goren and his adult children were less than satisfactory. Mr Goren’s adult children seemed to have decided that they could pick and choose what information they passed on to their father. I do note however that Tradelink seems to have decided, for reasons not yet apparent, that it could ignore communications from the Goren family unless they came from Mr Goren himself.

[69] I consider the merits of the present case point slightly against a finding that there are exceptional circumstances.

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

[70] Finally, I must take into account “fairness as between the person and other persons in a similar position.” 14 This consideration seems to have been derived from a series of cases in the Federal Court and the former Industrial Relations Court of Australia.15

[71] In certain circumstances there may be people in a “similar position” to the applicant, such as other employees dismissed by the same employer at the same time. Under s.394(3)(f) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of the applicant’s claim compared to the claims of others in a similar position.

[72] I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Goren and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Compliance with s.117 of the Act

[73] In the course of the hearing Mr Goren made a submission to the effect that because Tradelink did not give him any notice of termination, and because there is no suggestion that he engaged in misconduct, Tradelink’s failure to give Mr Goren notice of dismissal contravened s.117 of the Act and rendered the dismissal ineffective.

[74] I do not accept this argument. Firstly, I have not made any finding at all that Mr Goren was dismissed. Secondly, as the Full Bench in Metropolitan Fire and Emergency Services Board v Duggan 16 found, a notice of termination that does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act.

Conclusion

[75] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Goren, I am satisfied that there are exceptional circumstances. As such I have a discretion to make an order granting Mr Goren further time to commence his application.

[76] The reason for the delay points towards granting an extension of time, although I have some reservations about doing so for the reasons stated above. Mr Goren does not have a strong case and in my view the merits point slightly against granting an extension.

[77] On balance I am inclined to grant the order sought.

DEPUTY PRESIDENT

Appearances:

Ms H Goren, for the Applicant
Ms A Francis, for the Respondent

Hearing details:

2021.
Sydney (By Video)
16 August.

Printed by authority of the Commonwealth Government Printer

<PR733345>

 1   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].

 2   Fair Work Act 2009 (Cth), s.394(3)(a).

3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 4   Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].

 5   Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000).

 6 Ibid [24].

 7   Ayub v NSW Trains (2016) 262 IR 260 at 268; [2016] FWCFB 5500 at [23].

 8   Fair Work Act 2009 (Cth), s.394(3)(b).

 9   Fair Work Act 2009 (Cth), s.394(3)(c).

 10   Fair Work Act 2009 (Cth), s.394(3)(d).

 11   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 12   Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168

 13   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [71]

 14   Fair Work Act 2009 (Cth), s.394(3)(f).

 15   See Lucic v Nolan (1982) 45 ALR 411 at 416, [1982] FCA 217; Wedesweiller and others v Cole and others (1983) 47 ALR 528 at 531, [1983] FCA 94; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349, [1984] FCA 176; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300. See also Wilson v Woolworths[2010] FWA 2480 at [25]-[29].

 16 (2017) 270 IR 240 at 249, [2017] FWCFB 4878 at [33].