Ibrahim Abdo v Royal Society for the Prevention of Cruelty to Animals
[2023] FWC 2651
•12 OCTOBER 2023
| [2023] FWC 2651 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ibrahim Abdo
v
Royal Society for the Prevention of Cruelty to Animals
(C2023/5001)
| DEPUTY PRESIDENT DEAN | CANBERRA, 12 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – application dismissed.
Mr Ibrahim Abdo (the Applicant) has made an application under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving his dismissal from the Royal Society for the Prevention of Cruelty to Animals (RSPCA or the Respondent).
The Applicant says his employment with the Respondent commenced on 3 July 2023 and he was coerced to resign two weeks later on 19 July 2023. In his application he says that his dismissal took effect on 28 July 2023, being the conclusion of his one-week notice period.
The Respondent says the Applicant was dismissed on 19 July 2023 and received one week’s pay in lieu of notice. The Applicant did not work after 19 July 2023 and returned the company property in his possession on that date.
This application was made on 17 August 2023.
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). The Applicant contends his employment ended on 28 July 2023 being the conclusion of the one-week notice period. It is not in dispute that the Applicant ceased work on 19 July and did not work after that date.
It is unnecessary for the Commission to determine whether the Applicant’s employment ended by reason of resignation or dismissal when determining whether time should be extended for an application to be made. It is sufficient that the Applicant acknowledged that his employment ended on 19 July 2023. As a result, the application is 8 days late and so can only proceed if the Commission allows further time for the Applicant.
The application was listed for hearing on 11 October 2023 to consider whether to extend time. The Applicant appeared and gave evidence on his own behalf. The Respondent was represented by Ms N Visedo and called evidence from Ms R Bochtler.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(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).
(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.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Applicant provided the following as to the reason for the delay in filing his application:
“The experience of my dismissal took a huge toll on my mental wellbeing, and I had not confided in anyone about what happened until 2 weeks later. The friend I had spoken to about the events of my dismissal was the one who encouraged me to take the matter to FairWork.
I then sought free legal advice over the phone with Legal Aid and also spoke with a representative from FairWork who explained which form I was to fill out and by that stage I believed that I was only 1 day over the 21 day time frame.”
In support of this reason, the Applicant provided a letter from his treating Psychologist which said it was his mental illness that kept him from making his application within the 21 day time limit. He also provided a letter from a friend who is a psychotherapist who said that she had spoken to him about his resignation and the process of him making the decision to resign, and that he had suffered from emotional distress which was why the application was late.
The Respondent submitted that both letters provided observations about the Applicant’s state of mind but did not support a contention that exceptional circumstances exist which prevented him from making his application within time. It contended that the Commission should conclude that the evidence of the Applicant’s incapacity is insufficient to create abnormal circumstances which would justify an extension of time.
While there is some evidence to support that Applicant’s contention about his incapacity, I am not satisfied that the letters clearly demonstrate the Applicant was unable to make an application within time.
This weighs slightly against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant did not take any action, other than the making of this application, to dispute his dismissal. This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I am not satisfied that the evidence shows any prejudice to the employer if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
It has become more common for applicants who wish to dispute their dismissal but are ineligible to make an application under s.394 for an unfair dismissal remedy (for example because of not having met the minimum employment period) to instead make a general protections application. This, in my view, is one of those cases. The application does not disclose proper grounds on which it is alleged that adverse action was taken because of a particular proscribed reason. The application reads as an unfair dismissal application.
As a result, I consider the merits are not strong, and this weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]
The Respondent submitted that many employees have been in a similar position to the Applicant when seeking to have time extended by the Commission. The circumstances where the Commission has previously considered incapacity as an exceptional circumstance warranting an extension of time have required clear evidence of that incapacity’s impacts. It would be unfair for the Applicant to be permitted to continue the application in circumstances where others in a similar position have not.
I consider the submissions of the Respondent in relation to this criterion to have merit, and this weighs against a finding that there are exceptional circumstances.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
Having considered all the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is issued separately.
DEPUTY PRESIDENT
Appearances:
I Abdo on his own behalf.
N Visedo for Royal Society for the Prevention of Cruelty to Animals.
Hearing details:
2023.
By telephone:
October 11.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
Printed by authority of the Commonwealth Government Printer
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