Jalil v BMD Constructions Pty Ltd

[2014] FWC 9357

[2014] FWC 9357

FAIR WORK COMMISSION

DECISION

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

Mr Abdul Jalil
v
BMD Constructions Pty Ltd
(U2014/1200)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 DECEMBER 2014

Application for relief from unfair dismissal - Jurisdiction - Extension of time.

[1] Mr Adbdul Jalil applies for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by BMD Constructions Pty Ltd. Mr Jalil states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 4 March 2014 and that it took effect on 19 March 2014. The application was made on 10 April 2014.

[2] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Mr Jalil’s application was made 1 day outside the time required in s.394(2). It is necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) 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) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[1] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[2] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Jalil to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. The parties did not request to cross-examine persons who provided statements. For reasons which will be apparent, it is not necessary to hold a hearing for this purpose and I have determined the matter on the basis of the material on the file.

[3] The reason given by Mr Jalil for the delay in making his application is that he miscalculated the 21 days because he used a spreadsheet instead of a calculator to determine the lodgement timeframe. Mr Jalil states that he was aware of the 21 day time limit to file an application for an unfair dismissal remedy and always intended to file within that time frame. Further, Mr Jalil states that he was given only two weeks notice of the termination of his employment, and as a result accepted a position with another company on a fly in fly out basis. Due to the remoteness of his new employment, lack of access to a computer and unreliable internet connection, Mr Jalil was not able to file his application within the required time.

[4] It is clear from the termination letter that Mr Jalil knew on 4 March that the termination of his employment would take effect on 19 March. In relation to action taken to contest his dismissal, Mr Jalil sent an email to his manager on 12 March stating that he believed his dismissal was unfair and reserving his rights. Mr Jalil also consulted with solicitors on 25 March but decided not to engage such representation due to cost.

[5] In relation to merit, BMD Constructions submits that Mr Jalil’s contract of employment was for the life of a particular project and he earned in excess of the high income threshold. Mr Jalil states that his written employment contract does not include a cessation date and maintains that he was never given advice that his employment was for a fixed term. That contract was tendered by Mr Jalil. Mr Jalil also contends that he had a reasonable expectation of ongoing employment. There is no evidence of any prejudice to BMD Constructions arising from the delay in Mr Jalil’s application being made, other than being required to defend the application.

[6] BMD Constructions acknowledges that Mr Jalil’s delay in making the application due is human error or ignorance. BMD Constructions contends that Mr Jalil failed to file within the requisite timeframe due to him being employed by another company within 21 days from the date of his dismissal.

[7] Although the delay in this case is only one day, the Act requires that in order to exercise the discretion to extend time, that I am satisfied that there are exceptional circumstances. I do not consider that Mr Jalil has established that there are exceptional circumstances so that the discretion to allow him an additional period to file his application should be exercised. There is nothing exceptional about the reasons he gives for his failure to file his application within the required time. That he miscalculated the required timeframe to lodge his application is not an exceptional circumstance. It is an unfortunate error.

[8] Mr Jalil was aware of the time limit, informed his employer that he intended to contest his dismissal before the dismissal took effect and consulted a solicitor within the time in which his application was required to be made. There is no evidence about the date upon which he commenced his new employment or why he could not have filed his application after seeing the solicitor on 25 March. That an applicant chooses to wait until the last date on which his application can be made within the required time, and then makes an error in calculating that date, does not without more, constitute exceptional circumstances.

[9] It is not apparent from the written contract of employment that Mr Jalil was employed only for the life of a particular project. It would appear that Mr Jalil’s base salary and site allowance would have taken his income above the high income threshold. However both of these matters would depend on a further hearing and evidence and it is not apparent that the application is without merit. It is also not apparent that the application has merit to the extent that this factor would outweigh the other matters I am required to consider.

[10] In the absence of exceptional circumstances, it would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application, to allow a further period for Mr Jalil’s application to be made.

[11] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Jalil’s application to be made should be exercised. Mr Jalil’s application for an unfair dismissal remedy U2014/1200 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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