Israel Mofalesi v Chemist 2U Australia Pty Ltd

[2024] FWC 1940

[2024] FWC 1940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Israel Mofalesi
v

Chemist 2U Australia Pty Ltd

(C2024/3080)

DEPUTY PRESIDENT BELL MELBOURNE, 6 AUGUST 2024

Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.

1. On 10 May 2024, Mr Israel Mofalesi applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).

1. The respondent, Chemist 2U Australia Pty Ltd, raised a jurisdictional objection to the Application on the ground that that it was made outside the 21-day time limit set out in s 366(1) of the Act.

1. Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The Commission must therefore determine in the first instance whether a further time for lodgement of the application is required and, if so, whether it should be granted.

1. Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 366(2) of the Act. Section 366(2) states:

“(2)       The FWC may allow a further period for the application to be made by a person under subsection (1) 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 similar position.”

1. In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).

1. Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. After conferring with the parties, I resolved to conduct the matter by way of a determinative conference.

1. Mr Mofalesi filed a witness statement with supporting documents, in addition to his ‘Form F8’ application. He was not required for cross-examination. The Respondent called no witnesses but relied on some limited documents it tendered, as well as a statement of submission. The respondent was represented by Ms Esther Colman of Seed HR, with permission having been granted.

When did the dismissal take effect?

1. The dismissal was effected by a letter of dismissal, sent to Mr Mofalesi’s email address on 18 April 2024. The dismissal letter was clearly expressed to take effect that day.

1. While Mr Mofalesi was away on that day, having taken sick leave, there does not appear to be any dispute, and I am satisfied, that Mr Mofalesi was notified of his dismissal and he was dismissed from his employment, effective on 18 April 2024. Mr Mofalesi’s Form F8 application states in response to question 1.3 the date the dismissal took effect was 18 April 2024 and his Form F8 further states “On April 18, during a time when I was already feeling unwell, I received an email that left me feeling psychologically devastated.”

Section 366(2)(a) - Reason for the delay

1. For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made by 9 May 2024. The delay is the period commencing immediately after that time until the date the application was lodged on 10 May 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]

1. As the application was lodged at 11.58pm on Friday, 10 May 2024, the application was lodged one clear day late, less a few minutes.

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[2]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[3]

1. Mr Mofalesi’s witness statement identifies four reasons for the delay in making his application:

   ·   Emotional and financial hardship,

   ·   His mental health (described as severe anxiety and depression),

   ·   Medication side-effects (from the medication to treat his mental health), and

   ·   Lack of funds for legal assistance.

1. While I accept that the personal circumstances of the applicant indicated a difficult period following his dismissal and dealing with the shock and consequences to him of that event, I am not satisfied that the evidence of the impact of the dismissal upon him rose to such a level as to adequately explain the delay in commencing the application.

1. While the evidence placed before me was far from comprehensive, I am satisfied that the applicant has at all times since his dismissal been suffering from mental health problems. Given the personal nature of those matters, I do not intend to describe them in detail here although I have had regard to them.

1. What is not clear to me, however, is whether those matters explain the delay before the applicant filed his application with the Commission. While I am prepared to accept that the applicant’s condition and medications (such as I understand them based on the material before me) has made it more challenging to commence a general protections claim, I do not accept it explains the delay or any part of it. I note that no evidence from any medical practitioner was led.

1. In addition, there is other material before me relied upon by Mr Mofalesi that demonstrates the action he took to dispute his dismissal. Also before me was other correspondence dealing with general inquiries and Mr Mofalesi’s attempts to obtain evidence about his dismissal within the 21-day period. I consider those matters support my conclusion that the delay was not adequately explained by Mr Mofalesi’s mental health challenges.

1. In relation to the lack of funds to obtain legal assistance, that is a commonly occurring difficulty faced by many applicants before the Commission. I do not consider it is a factor that adequately explains the reasons for delay or any part of it.

1. While the delay in the present case is not lengthy – one day - I am not satisfied that any of the reasons, taken individually or in combination, for the applicant’s delay in commencing his claim point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s 366(2), I consider the factor in s 366(2)(a) tends against the application for an extension of time.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[4]

1. Mr Mofalesi challenged his dismissal by an email exchange over 22 to 24 April 2024. However, during those emails, the employer made it clear that the decision would not be changed. I note that the final communication in that chain on 24 April 2024 from the employer stated “We are not prepared to discuss the decision any further and consider the matter closed.”

1. Mr Mofalesi also commenced his general protections claim, albeit he did so late.

1. Mr Mofalesi’s initial challenge to his dismissal is a factor that points slightly in his favour, although it is not a factor that I consider supports a finding of exceptional circumstances, whether on its own or with any other factor.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

1. In all the circumstances, I do not find that any material prejudice would be suffered by the employer if an extension of time were granted. I consider this factor is neutral between the parties. 

Section 366(2)(d) - the merits of the application

1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.

1. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[5].

1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.

1. There are a number of elements of Mr Mofalesi’s Form F8 that I consider will present some challenges to the overall merits of his application, which would tend against a finding of ‘exceptional circumstances’. However, noting that the applicant is unrepresented and at the early stage of his claim, they are not matters I place great weight upon and I will treat this factor neutrally between the parties.

Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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 can be considered exceptional.[7]

1. The respondent relied upon a recent decision of Commissioner Perica in Alegria v Ytb Ventures Pty Ltd[2024] FWC 1800, which was an extension of time decision dealing with an application that was also one day late. While there is no aspect of that decision that I take issue with or consider is incorrect, care must be taken in comparing one case to another where (as is the case here), the reasons for delay are not the same and the factual circumstances relevant to the other statutory factors contain further differences.

1. For the case before me, I have already set out above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s 366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of “exceptional circumstances”.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Mofalesi’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[8] to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

I Mofalesi on his own behalf
E Colman of Seed HR for the Respondent

Determinative conference details:

2024.
Melbourne (by video link via Microsoft Teams):
July 24.

[1] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] PR777435.

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