Hisham Darjazini v Western Sydney University

[2018] FWC 2615

[2018] FWC 2615

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Hisham Darjazini
v
Western Sydney University
(C2018/1869)

COMMISSIONER LEE MELBOURNE, 17 MAY 2018

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

Introduction

[1] Dr Hisham Darjazini (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The Respondent to the application is Western Sydney University (the Respondent). The application concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant, in contravention of the general protections set out in Part 3-1 of the Act, specifically s.340 of the Act. The application was lodged with the Commission on 9 April 2018.

[2] There is a dispute about when the termination of employment took effect. The Applicant claims that he was unaware that the termination of employment took effect until he received an email from Dr Nagrial on 28 February 2018. He therefore considers 28 February 2018 to be his last day of employment with the Respondent. The Respondent disputes this and contends that it is clear that the Applicant was engaged on a short term contract which expired on 31 December 2017 and this was the date the employment ceased. For reasons detailed later, it is apparent that the Applicant’s employment ceased on 31 December 2017. The application should therefore have been lodged by 22 January 2018, the next available day after 21 January 2018, a Sunday. The application was lodged on 9 April 2018 and is therefore 77 days out of time. As the application is made outside the prescribed period in s.366(1) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.

[3] The matter was listed for Objections Conference/Hearing by Telephone before me on 10 May 2018. The Applicant appeared on his own behalf. Ms Maiolo appeared on behalf of the Respondent. At the conclusion of the hearing I issued a decision ex tempore dismissing the application. I advised I would shortly provide written reasons for my decision. Those reasons follow:

Background

[4] The Applicant had been employed by the Respondent on various casual contracts since 1998. He taught in the School of Computing, Engineering and Mathematics. His duties as set out in the last contract were Lecturer, Demonstrator, Tutor and Marking. The Applicant’s last contract clearly indicates that it operates for not longer than 6 months and operates from 01/07/2017 to 31/12/2017. The Applicant has signed the contract.

[5] Given the extensive period over which the Applicant has been engaged on a series of these contracts, it was not surprising that the Applicant had an expectation, in the absence of any advice from the Respondent to the contrary, that he would be offered another contract. However, he was not offered another contract. At the hearing the Applicant confirmed that he did not work, nor was he paid after 31 December 2017. Therefore, it is apparent his employment ceased pursuant to the clear terms of the contract on 31 December 2017. Therefore, the application lodged on 9 April 2018 is 77 days out of time.

The law to be applied

[6] Section 366(1) of the Act provides as follows:

“(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).”

[7] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

“(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.”

Consideration

[8] The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd¹, where the Full Bench stated that:

“[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.”²

[10] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

Matters to be taken into account pursuant to section 366(2)

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] The main reason for the delay submitted by the Applicant relates to his mental health condition which he says was caused by the dismissal. The Applicant submitted a report from his Psychologist which states that he had attended two sessions since 19 March 2018. The report notes the Applicant had spoken of emotional and financial stress caused by the dismissal and had symptoms of adjustment disorder such as depressive mood, low motivation, anxiety and problems sleeping and that coping strategies had been discussed.

[13] I do not doubt that the Applicant experienced a level of considerable distress as a result of his employment ceasing. However, it is common for employees to suffer some trauma as a result of losing employment. 3

[14] The symptoms described do not evidence that the Applicant was incapable of lodging an application within the time period. I am not satisfied the mental health condition of the Applicant provides a satisfactory reason for the delay.

[15] I understand that the Applicant had an expectation that there would be a further contract offered and that he was not expressly told he would not be offered a new contract until he received a reply to his email sent 23 February 2018. The reply from Dr Nagrial was sent 5 days later and makes clear he was not being re-engaged and that a PhD Student would perform the Applicant’s former role. One would have thought that it would be at least common courtesy from the Respondent to advise an employee who had been engaged for such a long period of time that the succession of contracts would come to an end. I have taken this into account however there is still a considerable period of time that elapsed from 28 February to 9 April 2018 when the application was lodged. Further, there is no reason that the Applicant could not have acted earlier to query if he was to be offered a further contract.

[16] The Applicant raised the following other matters, including that he:

•  Was shocked after learning that he was excluded from the casual appointment and was incapable of taking any action in respect to the situation;

•  Needed time to re-organise his thoughts and see what options were available to him;

•  Was suffering financial hardship and had to find an alternative income which consumed significant time;

•  Had to seek advice; and

•  Had to make an appointment with the Psychologist.

[17] None of these reasons either singularly or combined are acceptable reasons for the considerable delay of more than 2 months. Considering all of the various reasons advanced by the Applicant I am not satisfied there is an acceptable reason for the delay and this weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[18] The Applicant does not advance any submission on this point. The Respondent submits that there was no action other than the making of the application. This weighs against a finding of exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[19] The Respondent does not advance any argument of prejudice beyond that which would normally be experienced by an employer. The absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.

(d) Merits of the application

[20] In the matter of Kornicki v Telstra-Network Technology Group 4 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 5

[21] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case”. 6 

[22] In his application the Applicant alleged that that the Respondent contravened s.340 Protection. The Applicant asserts that the Respondent treated him unfairly for a long period of time during his employment as a sessional academic staff member and that this included reducing his hours to reduce his ability to obtain a TFR (Teaching Focus Role), cutting his duties and applying nepotism when he applied for full-time roles. The Applicant has clearly been seeking to obtain permanent employment for some time. He drew attention to the Western Sydney University Academic Staff Agreement 2017 (the Agreement)that had been approved by a majority of employees and lodged with the Commission for approval. It is common ground that the Agreement provides for enhanced rights for long term casual employees on fixed term contracts to convert to permanent positions. The Applicant submits that he would have become permanent under its terms if he had another contract and if the Agreement is approved. The Respondent disputed that there was a unilateral right for long term casual employees to be converted to permanent employment under the terms of the new Agreement. The Respondent also submits as follows in relation to the merits of the application:

“The University respectfully submits that the merits of the Application are weak. The Application does not clearly set out how the general protections provisions contained in the Act have been allegedly contravened by the University’s actions or conduct, nor is there any evidence to support Dr Darjazini’s assertions that the University altered his position to deprive him of the benefits of the Academic Staff Agreement 2009-2012 and the Academic Staff Agreement 2017 (which is awaiting approval by the Commission);

Dr Darjazini has not provided any evidence in support of his claims regarding his lack of success in applying for positions within the School of Computing, Engineering and Mathematics (SCEM). Furthermore, these claims do not appear to fall within the general protections provisions contained in the Act;

The University denies that Dr Darjazini’s working hours were reduced to render him ineligible for a Teaching Focused Role under the Academic Staff Agreement 2009-2012. Dr Darjazini’s hours of work were determined according to student numbers and the operational needs of the SCEM. In addition, 2012 was the year in which the SCEM merged with the School of Engineering, which may also account for changes in work allocation; and

The University also denies that Dr Darjazini’s employment was terminated to prevent him from seeking conversion under the (not yet approved) Academic Staff Agreement 2017. Dr Darjazini’s Casual Employment Authority expired on 31 December 2017. Dr Darjazini was not re-engaged as lecture/class recordings indicated he was not delivering lectures/classes of the required duration but nevertheless claiming payment for the full period of time. For example, between August and September 2017, Dr Darjazini delivered 6 lectures in Microcontrollers and PLCs of between 41 minutes and 74 minutes’ duration despite the scheduled length of the lecture being 2 hours.” 7

[23] The Applicant disputes the claims that he had not been delivering lectures to the required duration.

[24] I note that while the Agreement had been lodged with the Commission at the time of dismissal, it was not yet approved and was not in force at that time. In that sense, it was not at the time of dismissal a workplace right. It may well become one in the future. The Agreement, as noted by the Respondent during the hearing, was approved by the Commission on 8 May 2018.

[25] Considering the merits of the application overall, I agree with the Respondent that the application does not clearly set out how the general protections provisions have been contravened. However, I am satisfied that the Applicant has established that the substantive application is not without merit and this weighs slightly in favour of a finding that there are exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[26] The Applicant’s submissions are that the situation is not fair as he was the oldest sessional staff member at the School of Computing, Engineering and Mathematics, that the new Agreement would allow him to be eligible for full-time employment and there is one case of a PhD student occupying a full-time position. The Respondent submits that no-one else is in the Applicants position against whom a comparison may be drawn. I am not satisfied that there anything of particular relevance that arises from consideration of this factor. Accordingly, I regard this factor as neutral.

Conclusion

[27] I am not satisfied that there is an acceptable reason for the delay or that the Applicant took any action to dispute the dismissal which weighs against a finding of exceptional circumstances. The merits of the application weigh slightly in favour of a finding that there are exceptional circumstances. All other factors are neutral considerations. Having considered all of the factors set out in s.366(2), I am not satisfied overall that there are exceptional circumstances that would warrant granting an extension of time. Accordingly, the application is dismissed.

[28] An order giving effect to this decision has previously been published in PR606961.

COMMISSIONER

Appearances:

H Darjazini on his own behalf for the Applicant

N Maiolo for the Respondent

Hearing details:

2018

Melbourne (Telephone Hearing):

10 May.

Final written submissions:

5 May 2018

Printed by authority of the Commonwealth Government Printer

<PR606960>

1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

2 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13], [15]

 3   Rose v BMD Constructions Pty Ltd[2011] FWC 673 at [9] – [10]

 4   Kornicki v Telstra-Network Technology Group, Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 5   Ibid.

 6   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]

 7   Respondent’s outline of argument: extension of time, filed 24 April 2018 at [23] – [24]