Hassan Bakhshi v F & J Metal Fabrications (Aust) Pty Ltd T/A F & J Metal Fabrications (Aust) Pty Ltd

[2016] FWC 4510

[2016] FWC 4510

FAIR WORK COMMISSION

DECISION

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

Hassan Bakhshi
v
F & J Metal Fabrications (Aust) Pty Ltd T/A F & J Metal Fabrications (Aust) Pty Ltd
(U2016/6388)

COMMISSIONER WILSON MELBOURNE, 6 JULY 2016

Application for relief from unfair dismissal; whether extension of time should be granted for lodgement of application.

[1] This matter concerns an application made by Hassan Bakhshi alleging unfair dismissal against his former employer, F & J Metal Fabrications (Aust) Pty Ltd. Mr Bakhshi’s application was received in the Fair Work Commission on 21 April 2016. Mr Bakhshi’s application asserts that the date upon which his dismissal took effect was 29 March 2016; however, for the reasons set out below the consistency of evidence is that he was in fact dismissed on 23 March 2016, with the termination taking effect on the same date.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 8 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Bakhshi for the making of his application and, for the reasons set out below, I am satisfied that a further period should be allowed for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, F & J Metal Fabrications, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Bakhshi and Fatima Malkoc, a Director of the Respondent. The material before me includes written witness statements of Parviz Tork, a former work colleague of Mr Bakhshi, Lisha Busari, who shared a house with Mr Bakhshi and helped him prepare his application, and, on behalf of the Respondent, Clint Leighton, the Factory Manager. While none of those three people gave oral evidence, I have had regard to their written statements in forming this decision, taking into account that the matters asserted by them have not been tested through oral evidence.

BACKGROUND

[7] Hassan Bakhshi was employed by F & J Metal Fabrications (Aust) Pty Ltd on 13 May 2014. At the time he was dismissed Mr Bakhshi was employed as a labourer, with his employment regulated by the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010].

[8] At the time Mr Bakhshi was dismissed, F & J Metal Fabrications employed 16 people, comprising 11 casuals and five full-time employees.

[9] Mr Bakhshi was injured at work on 5 June 2015 when a heavy metal sheet accidentally dropped onto his leg and knee. The injury required his attendance at the Monash Hospital. Shortly after the injury he submitted a WorkCover claim. A Return to Work Plan was subsequently prepared for him. His employment continued subject to the Return to Work Plan until the date of his dismissal.

[10] At the time he was dismissed, F & J Metal Fabrications assert that Mr Bakhshi’s employment status was casual, having changed from its original ongoing nature, although Mr Bakhshi disputes that such a change in employment status was ever communicated to him, or agreed by him.

[11] F & J Metal Fabrications also submit that several disciplinary warnings were given by the company to Mr Bakhshi relating to his conduct, although, again, Mr Bakhshi disputes these were communicated to him on the dates asserted by the Respondent, or that his conduct warranted the issuing of a warning or other disciplinary action. In this regard, F & J Metal Fabrications submit that a first warning relating to Mr Bakhshi’s conduct at work was issued to him on 30 November 2015. They also submit that a further warning was issued to Mr Bakhshi on 1 December 2015.

[12] No work was performed by Mr Bakhshi for F & J Metal Fabrications between 21 December 2015 and 15 February 2016.

[13] On 23 March 2016 F & J Metal Fabrications submit that its Factory Manager, Mr Leighton, approached Mr Bakhshi and asked him to complete some tasks and to not lean or sit on pallets next to his work area. That approach led to an argument between the two. Mr Leighton reported this to the Director, Ms Malkoc, after which Mr Bakhshi was given a third and final warning and then summarily dismissed and asked to leave the premises on the same day.

[14] On 29 March 2016 Mr Bakhshi received a letter from F & J Metal Fabrications confirming the termination of his employment. The letter of termination indicates that Mr Bakhshi’s dismissal was for reason of his “intimidation, threatening verbal abuse and bullying behaviour of the factory manager”.

[15] Mr Bakhshi attended a medical practitioner on 14 April 2016 complaining of abdominal pain and diarrhoea over the previous three weeks. The general practitioner referred him to a hospital emergency department for possible admission and follow-up and provided, for the purposes of these proceedings, a medical certificate stating that he did not believe that Mr Bakhshi was fit to complete legal documents during the period 29 March 2016 to 19 April 2016. The general practitioner’s medical referral indicates a reference of Mr Bakhshi to the Dandenong Hospital for reasons of “mixed hepatocellular and cholestatic liver disease”.

[16] Mr Bakhshi’s evidence includes that he is in Australia as a refugee and therefore has limited access to the Medicare system. As a result, he could not afford to act on his general practitioner’s referral or other recommended treatment. While he had been referred to the Dandenong Hospital, it appears he only attended that hospital as an outpatient, and took some further weeks to attend another hospital, the Monash Clayton hospital.

[17] For the purposes of s.396 of the Act, Mr Bakhshi is otherwise a person protected from unfair dismissal, the Small Business Fair Dismissal Code has no application to his circumstances, and no question of his dismissal being a genuine redundancy arises.

CONSIDERATION OF THE FACTORS SET OUT IN SECTION 394(3) OF THE ACT

[18] In considering whether an extension of time should be granted to Mr Bakhshi, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[19] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 3 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.4 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.5

[20] In relation to Mr Bakhshi, the evidence indicates that he did not work for the Respondent after 23 March 2016, and the consistency of evidence is that his termination of employment took effect on Wednesday, 23 March 2016. In consideration of a finding about the date of dismissal the Respondent, as referred to above, relies on there being an altercation between Mr Bakhshi and Mr Leighton on 23 March 2016 and that, as a consequence of that altercation, Mr Bakhshi had been given a third and final warning, and was then told that his conduct would not be tolerated and was asked to leave the premises.

[21] While I accept that the Respondent may not have been as precise as it could have been about telling him that he had been dismissed on that day, I have no doubt that Mr Bakhshi was aware after what occurred that he no longer had employment at F & J Metal Fabrications. For her part, Ms Malkoc submits that one of the reasons that there was a delay in not confirming in writing Mr Bakhshi’s dismissal until 29 March 2016 was that she needed to discuss the matter with her company’s workers compensation insurer. I accept that was the case; however I also accept that those discussions were about the payments that should be made to Mr Bakhshi and were not directed to a question of whether his employment should continue. The context of the business being one that employed only 16 employees at the time Mr Bakhshi was dismissed reinforces the plausibility of the matters that Ms Malkoc puts forward about the circumstances of the date of effect of Mr Bakhshi’s termination of employment, which was 23 March 2016, and the delay by the company in confirming that to him in writing, which took until 29 March 2016.

[22] With the date of effect of dismissal being Wednesday, 23 March 2016, for Mr Bakhshi’s unfair dismissal application to be within time it would need to have been lodged no later than Wednesday, 13 April 2016 in order for it to have been made within time, whereas the application was received in the Fair Work Commission on Thursday, 21 April 2016. The application was therefore made 8 days after the expiry of the statutory limit.

[23] The reason Mr Bakhshi puts forward for his application being late is his medical condition. No other reason is put forward by Mr Bakhshi for the delay in making his application. The material before the Commission in this regard includes several medical certificates which serve to confirm the symptoms reported by Mr Bakhshi and, without those certificates being tested, the severity of the symptoms and Mr Bakhshi’s subsequent incapacity. As referred to above, his general practitioner certified that Mr Bakhshi was not fit to complete legal documents during the period 29 March 2016 to 19 April 2016. The general practitioner’s hospital referral indicates it was for reasons of “mixed hepatocellular and cholestatic liver disease”.

[24] The certificate of capacity refers to Mr Bakhshi being unable to complete legal documents until 19 April 2016. In light of Mr Bakhshi’s unfair dismissal application not having been made until 21 April 2016, I consider that the discrepancy in dates is explained by Mr Bakhshi’s initial erroneous contention that the dismissal had taken effect on 29 March 2016. If that was the case the last day for lodgement of an unfair dismissal application, in order for it to be within time, would have been 19 April 2016. In overall context, the evidence does not lead me to a finding that Mr Bakhshi was otherwise fit and able to complete legal documents in the period between 19 and 21 April 2016.

[25] Mr Bakhshi also gave evidence that Ms Busari, his former roommate, first alerted him to the possibility that he could make an unfair dismissal application and that she assisted him with filling out the form. Mr Bakhshi’s evidence is that the conversations with Ms Busari about this matter were close in time to the date on which his dismissal took effect and that he was aware through her that there was a 21 day time limit for the making of an unfair dismissal application. In context, this assistance and advice is not advanced as a reason for there being a delay in the making of the application.

[26] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for the application to be lodged, which in Mr Bakhshi’s case was the period between 13 April 2016 and 21 April 2016, a period of 8 days.

[27] In the circumstances of Mr Bakhshi’s case, there is significant plausibility to what he puts forward about being incapacitated between early and mid-April 2016. The evidence that he has brought forward about his medical condition and referrals from his general practitioner for assistance from a hospital is, in the circumstances, an acceptable reason for there being a delay in the making of an unfair dismissal application.

[28] Within that material submitted on behalf of the Respondent, there is the contention that Mr Bakhshi was seen, after the time of dismissal, at a local shopping centre doing grocery shopping and having coffee with friends. Mr Bakhshi contests what Ms Malkoc puts forward in that respect. Instead, his evidence was that while there was an occasion on which he undertook some limited grocery shopping, that occasion was close in time to the date that his dismissal took effect. He does not recall any occasion which he was seen by Ms Malkoc. Instead, his evidence was that he had been seen by another employee of the company and he conversed with that person, but only briefly. That evidence on behalf of Mr Bakhshi was not contradicted by Malkoc and was not the subject of cross examination by her. In the circumstances I accept what Mr Bakhshi has to say on the matter.

[29] After consideration of all of the material submitted by the parties and the evidence given on the subject of the delay in Mr Bakhshi making his application, I am satisfied that he has provided an acceptable reason for there being a delay in making his application. Accordingly, this criterion resolves in his favour in my consideration of whether an extension of time for filing should be granted.

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

[30] On the basis of the evidence before me, I am satisfied that Mr Bakhshi first became aware of the termination of employment on 23 March 2016. This is therefore not a circumstance where he only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 6

[32] Mr Bakhshi’s evidence about actions taken by him to dispute his dismissal are that he discussed it with Ms Busari the same night that he was dismissed, on 23 March 2016. That discussion extended to what he might be able to do about the situation and his entitlement to have a written notification about the circumstance. Ms Busari then commenced the process of assisting Mr Bakhshi in obtaining information about his rights and making an unfair dismissal application. Other than this action, I am satisfied that Mr Bakhshi took no substantive action to dispute his dismissal until the making of his application to the Fair Work Commission on 21 April 2016.

[33] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[34] The delay in the filing of the application is 8 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[35] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 7

[36] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[37] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[38] Mr Bakhshi was assisted in preparation of his submissions for this hearing by a solicitor, John Munroe of K & L Gates, acting pro bono, who very usefully and cogently summarised the alleged unfairness relating to Mr Bakhshi’s dismissal in this way;

“1. There was no valid reason to terminate my employment (Fair Work Act 2009 (Act) s 387(a)).

a. My employer purported to terminate my employment on the basis of "intimidation, threatening verbal abuse and bullying behaviour towards the factory manager".
b. I did not act rudely towards my supervisor as alleged.
c. My employer purported to terminate my employment on the basis of refusal to complete basic housekeeping tasks in accordance with my Return to Work plan and restrictions and continuously resting on materials.
d. When I did so, I was acting in accordance with my most recent certificate of capacity at the time, which provided that I should not undertake any deep flexion or bending, heavy lifting over 10 kg, stand for more than 1 hour or walk for more than 30 minutes.
e. My employer purported to terminate my employment on the basis of my refusal to increase hours in accordance with the Return to Work plan.
f. At all times I acted in accordance with my Return to Work plan. This plan specifies under "Review" that both my physiotherapist and surgeon must review the plan prior to the planned increase in hours. This had not occurred when my employer directed me to increase my hours. This was not a lawful or reasonable direction.

2. While I had been warned about this conduct before, there was also no valid reason for the issuing of these warnings. They also related to unlawful directions for me to contravene the requirements of my Return to Work plan. Details of these incidents are set out in the attachment to my Form F2 Application.

3. I was not given an opportunity to respond to the final written warning that resulted in the termination of my employment (s 387(c) of the Act). The employer's Form F3 Response sets out that there was allegedly an investigation into my conduct in which she discussed it with other employees. However, Ms Balkoc [sic] did not interview me or meet with me to discuss the alleged incident.

4. The termination was harsh, for the reason that I am on WorkCover and termination due to alleged misconduct has reduced my weekly payments. It is also harsh because I am a refugee with limited English and will therefore find it more difficult to find further work.” 8

[39] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 9

[40] In considering Mr Bakhshi’s application, I am satisfied that there is at least an arguable case on his behalf, while noting that the case is as yet untested and that the former employer strenuously opposes the construction of circumstances that Mr Bakhshi would put forward, instead seeking the Commission prefer its view that he was intimidating, threatening and bullying, and repeatedly so to the point where his dismissal took place after two warnings on the subject.

[41] Notwithstanding the submissions on behalf of the former employer, it is my view that consideration of this criterion resolves in Mr Bakhshi’s favour.

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

[42] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 10 In the context of the medical circumstances experienced by Mr Bakhshi I consider it would be an unfairness to him in comparison to other applicants, similarly medically incapacitated, for me not to extend the time limit for the making of an application for unfair dismissal remedy.

[43] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Bakhshi.

[44] For these reasons, I grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order that the time for Hassan Bakhshi to file his unfair dismissal application made pursuant to s.394 of the Act be extended until 21 April 2016.

COMMISSIONER

Appearances:

Mr H Bakhshi on his own behalf.

Ms F Malkoc for the Respondent.

Hearing details:

2016.

Melbourne:

4 July.

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

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9].

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 7   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 8   Exhibit A1, Applicant’s Outline of Argument, [7].

 9   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 10   Wilson v Woolworths [2010] FWA 2480, at [24]‒[29].

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