Hisham Darjazini v Western Sydney University

[2018] FWC 4482

[2018] FWC 4482

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hisham Darjazini
v
Western Sydney University
(U2018/5201)

DEPUTY PRESIDENT BULL SYDNEY, 31 JULY 2018

Application for an unfair dismissal remedy. Application filed out of time, no exceptional circumstances to extend time for filing, application dismissed

[1] The matter was listed for jurisdictional hearing on 24 July 2018. I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision. 1

[2] On 19 May 2018, Hisham Darjazini (the applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s. 394 of the Fair Work act 2009 (the Act) in relation to the termination of his employment with Western Sydney University (the University).

[3] On the material filed by the parties it was apparent that the application was filed out of time, being more than 21 days after the applicant’s dismissal took effect, contrary to the requirement in s.394(2) of the Act.

[4] I listed the matter for Mention by telephone on 14 June 2018 and subsequently issued directions for the filing of material in relation to the applicant’s application for an extension of time in which to make his application.

[5] The University in its employer response (Form F3) objected to the Commission granting an extension of time to the applicant and further stated that the applicant was not dismissed as his contract of employment came to an end, as per its terms. 2

[6] The applicant was employed on various casual contracts with the University, from 1998. The University submits that he was employed on a regular and systematic basis as a casual employee, commencing in 2008.

[7] The applicant says he was notified of his dismissal on 28 February 2018, despite his last casual contract ending on 31 December 2017. This is because he had no notice from the University of their intention not to renew his casual employment contract until he emailed the University on 23 February 2018, and received a response on 28 February 2018.

[8] While the University's email response on 28 February 2018 does not provide a direct reason for not renewing the applicant's casual employment contract, their Form F3 states that the applicant's pattern of failing to deliver lectures/classes of the required duration, while claiming payment for the full period of time, was the reason his contract was not renewed following the cessation of the last casual employment authority. The University maintains that the last date of employment was 31 December 2017.

[9] Even accepting the applicant's submission that his termination of employment took effect on 28 February 2018, when he was advised by email of the non-renewal of his casual contract arrangements, his unfair dismissal application is in excess of eight weeks out of time. The 21 day period expired on 21 March 2018 and the applicant did not file this application until 19 May 2018.

Are there exceptional circumstances - s.394(3)?

[10] Section 394(3) of the Act provides the Commission with discretion to allow a further period, outside the statutory 21 days, for an unfair dismissal application to be filed if the Commission is satisfied that there are exceptional circumstances, taking into account a number of factors. These factors are the reasons for the delay, when the person became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, prejudice to the employer, including prejudice caused by the delay, merits of the application and fairness as between the person and any other person in a similar position.

Reasons for the delay

[11] In respect to the reasons for the delay, in Mr Darjazini's application he states he had incorrectly lodged a general protections application on 9 April 2018, which was matter C2018/1869, filed in the Commission. This application was also filed outside the 21 day period allowed and required the Commission to allow a further period for the application to be made if the Commission was satisfied that exceptional circumstances existed, as per subsection 366(2) of the Act.

[12] Commissioner Lee, in an ex tempore decision on 10 May 2018, with written reasons handed down on 17 May 2018 3, dismissed the application on the basis the exceptional circumstances did not exist to grant a further period to file the general protections application.

[13] It is to be noted that at no stage in the applicant's submissions in his general protections application does the applicant indicate he has filed in the wrong jurisdiction or filed the wrong application. It is not until after the Commission's decision, that of Lee C, to dismiss his application that the applicant filed an unfair dismissal application.

[14] The reason why the applicant believes he filed a general protections complaint in error is not clear, other than in his written submissions of 20 July 2018, at paragraphs 6, 9 and 10, where he states that on 18 May 2018, he received legal advice from Legal Aid, first having made contact with Legal Aid on 10 May 2018.

[15] This is also stated in his correspondence to the Commission; dated 6 June 2018, 4 paragraph 8, where he states Legal Aid advised him to file an unfair dismissal claim.

[16] Lee C's decision does not indicate that the applicant may have filed his application in the wrong jurisdiction. The applicant’s general protections claim asserted that the University altered his position to deprive him of the benefits of an enterprise agreement.

[17] On the face of the facts before the Commission, the applicant has sought legal advice after his general protections application was dismissed and, for reasons not made clear, has been advised by Legal Aid to file an unfair dismissal application.

[18] I do not find this, on its own, to amount to an exceptional circumstance, having regard to the authorities on the meaning of exceptional circumstance (see Nulty v Blue Star Group Pty Ltd 5).

[19] The circumstances found by the Full Bench in Hambridge v Spotless Facility Services 6 do not exist in this application.

[20] Mr Darjazini also submits that the reasons for filing his application out of time include that:

“He was shocked after learning of his exclusion from further casual contracts and that made him incapable of taking any action in respect of the situation.”

[21] Being shocked is not an uncommon emotion following such advice and certainly not an exceptional response. In any event, the applicant was sufficiently composed to file a general protections application, on 9 April 2018.

[22] In support of his application the applicant provided a letter dated 23 April 2018 from Ms Sha Mi, a psychiatrist, who states that Mr Darjazini attended two sessions since 19 March 2018. However there is no medical evidence that he was not competent to complete an unfair dismissal application within the 21 day timeframe allowed or why he was able to file a general protections application on 9 April 2018 and an unfair dismissal application on 19 May 2018.

[23] As the only income earner in his family Mr Darjazini states that he had to find income for his family, which consumed a significant portion of time before he could settle down and start his application. This circumstance is to be ordinarily expected to arise following a dismissal; it is not exceptional. Mr Darjazini also refers to his lack of knowledge in the law and workers' rights. Again, lack of knowledge is not an exceptional circumstance.

[24] It is noted that other than stating he had filed the wrong application, the reasons for delay in filing the unfair dismissal application out of time were those the applicant put before Lee C, and that were rejected by the Commissioner as not being exceptional, although the test in such an application is slightly different from what the Commission is faced with in this application.

Any action taken by the person to dispute the dismissal

[25] Mr Darjazini first brought his concern about his dismissal to the University's attention when he filed his general protections application, which he now says was filed incorrectly. No action prior to 9 April 2018 was taken to dispute the dismissal.

Prejudice to the employer

[26] In respect of prejudice to the employer, I find this to be a neutral factor.

Merits of the application

[27] Mr Darjazini devoted most of his efforts in his extension of time application to discussing the merits of his unfair dismissal application. On the face of what he has put, he has at least an arguable case, that is, it is not without merit.

[28] It should have been brought to the attention of a long-standing casual employee, as a matter of good practice and courtesy that his ongoing causal contracts were not to be renewed. It was not appropriate or good policy for the applicant to find out that his casual contracts were not to be continued only following an email that he sent to the University and then, when advised of the non-renewal of the casual contract not be given the true reason that is now found in the University’s defence to the unfair dismissal claim.

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

[29] In respect of fairness between the applicant and other persons, Mr Darjazini repeats what he has put in his general protections application and, again, I find this to be a neutral factor.

Consideration

[30] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. One factor may be exceptional or a combination of factors may result in exceptional circumstances. In this case, I am not satisfied that either of these scenarios arises. Any reasons for the extended delay, on their own or in conjunction with other factors considered pursuant to s.394(3) of the Act do not constitute exceptional circumstances.

[31] As such, the application has been filed out of time, that is, well past the 21 day period allowed and on that basis, the Commission is without jurisdiction to deal with the application.

[32] For the reasons provided above I am not satisfied that an extension of time to file the application should be granted.

[33] The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Applicant: Mr H Darjazini on his own behalf

Respondent: Ms N Maiolo Senior Employment Lawyer on behalf of the Respondent

Hearing details:

2018.

Sydney:

24 July

Printed by authority of the Commonwealth Government Printer

<PR609552>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25

 2   The Form F3 objection on the basis the applicant was not dismissed was not pursued see para[4] of the respondent’s outline of submissions

 3   Hisham Darjazini v Western Sydney University[2018] FWC 2615.

 4   The correspondence is erroneously dated 6 May 2018

 5   [2011] FWAFB 975

 6   [2017] FWCFB 2811