Kajin Ghafournejad v Coles Supermarkets Australia Pty Ltd
[2024] FWC 1022
•19 APRIL 2024
| [2024] FWC 1022 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kajin Ghafournejad
v
Coles Supermarkets Australia Pty Ltd
(U2024/2388)
| DEPUTY PRESIDENT DEAN | CANBERRA, 19 APRIL 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
Ms Kajin Ghafournejad (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by the Coles Supermarkets Australia Pty Ltd (Respondent).
Section 394(2) of the Act provides that 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 pursuant to s 394(3). The Applicant’s dismissal took effect on 10 January 2024 and this application was made on 4 March 2024, which is 33 days outside the 21-day time period.
The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The matter was listed for hearing on 18 April 2024. The Applicant appeared on her own behalf and Mr M McLean appeared for the Respondent.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The reasons given by the Applicant for the delay can be summarised as follows:
a.On 10 January 2024 (ie the date of the termination of her employment) she was recovering from emergency surgery which coincided with cyclones in the area where she resides and she had no internet access from 25 December 2023 to 1 January 2024;
b.during the 21-day period following 10 January 2024 the Commission's website would not allow her to file her application so she called a Commission staff member for assistance, however, none of the proposed solutions worked;
c.a few days after the 21 days passed she again attempted to lodge her application however once again, the Commission’s website did not work;
d.she had acid exposure to her eyes resulting in impaired vision and considerable discomfort, and which caused her to miss approximately 2 weeks of university. This caused a build-up of university assessments which had to be completed and so she did not have time to lodge her application within the time frame; and
e.this year has been financially and medically challenging for her.
As the Respondent points out, the Applicant did not file any evidence supporting her claim she was in hospital or recovering from surgery on or around 10 January 2024. The medical certificate which was filed by the Applicant shows that the chemical splash to her face which affected her vision occurred on 8 February 2024, which is well beyond the 21 day time frame allowed by the Act.
There is no evidence the Commission’s website was unavailable for any lengthy period. Even if the Applicant could not use the online form, there are other ways of making an application including downloading the form and emailing or posting it to the Commission, or making an application by telephone.
University assessments are not out of the ordinary or uncommon for a university student. It is clear from the evidence that the Applicant prioritised her study over the making of this application. This is not an acceptable reason that would excuse making the application within the statutory time frame.
Finally, there is no evidence to support a finding that her medical or financial challenges were of such gravity as to prevent her from lodging her application within time.
In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional, either individually or collectively. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute the Applicant was advised on 10 January 2024 that she would not be offered further casual shifts. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
There is no evidence to suggest that the Applicant took action to dispute her dismissal other than making this application. This does not weigh in favour of finding that there are exceptional circumstances.
Prejudice to the employer
While I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take account of the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant contends she was told by the Respondent that she would be given shifts when she was available, and this would apply even if she had very limited availability because she was a full time student with an extremely full schedule. However she was subsequently fired for ‘inactivity’ which caused her to lose her dignity and her reputation, and caused her financial hardship.
The Respondent contends that on 10 December 2023 it notified the Applicant that she had not worked for over 60 days and asked her to update her availability in its system. Then on 10 January 2024 the Respondent notified the Applicant that because she had not worked for more than 90 days and had either not updated her availability or her availability did not meet the need of the Respondent, she would not be offered any further casual shifts. The Respondent submitted the merits were poor as she was not employed on a regular and systematic basis and did not have a reasonable expectation of continuing employment.
While it is not possible to make any firm or detailed assessment of the merits, I do not consider the merits to be strong. Based on the material before the Commission, it would seem the Applicant was simply unavailable to work for an extended period of time, in which case the Respondent would be justified in bringing the employment to an end.
Accordingly, I consider the merits weigh slightly against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
The Applicant made no submissions about this criterion.
The Respondent submitted there was nothing remarkable or unusual about the Applicant’s circumstances and it would be unfair to others if the Applicant’s circumstances were held to be somehow exceptional and as justifying a departure from the rule that a dismissed employee must file their application within 21 days.
I accept the Respondent’s submissions and consider that this factor weighs against a finding that there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
K Ghafournejad on her own behalf.
M McLean for Coles Supermarkets Australia Pty Ltd\.
Hearing details:
2024.
By telephone:
April 18.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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