Kamalledin Shahsawari v The Trustee for Arthur Tzaneros Discretionary Trust & the Trustee for Luke Webber Trust
[2023] FWC 3220
•8 DECEMBER 2023
| [2023] FWC 3220 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Kamalledin Shahsawari
v
THE TRUSTEE FOR ARTHUR TZANEROS DISCRETIONARY TRUST & THE TRUSTEE FOR LUKE WEBBER TRUST
(C2023/6020)
| COMMISSIONER PLATT | ADELAIDE, 8 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed
On 12 September 2023, Mr Kamalledin Shahsawari (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with the Trustee for Arthur Tzaneros Discretionary Trust & the Trustee for Luke Webber Trust T/A Labourpower Recruitment Services (the Respondent) which occurred on 13 July 2023.
The Fair Work Act 2009 allows 21 days to lodge this Application. The Application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission in order for the general protections application to proceed.
In his Form F8, the Applicant identified the Application was made beyond the 21 days from the date of dismissal. At paragraph 1.4, the Applicant explained the reason for delay as follows:
-The Applicant made an application to the Commission for unfair dismissal remedy on 1 August 2023. By decision of 25 August 2023 in Application U2023/7058, it was found that the unfair dismissal application was filed with the Commission within the 21-day statutory period.
-The Applicant participated in a Conciliation Conference for U2023/7058 in the Commission on Thursday, 28 September 2023, without the assistance of legal representation. No outcome was reached at the conference.
-The Applicant first sought legal advice today, 29 September 2023. The Applicant has now filed a notice of discontinuance on U2023/7058 in order to pursue this Application in its stead.
-The circumstances of the dismissal raise clear and obvious issues central to a General Protections Application, inter alia, the Applicants employment was terminated, without the apparent provision of reasons, shortly after the Applicant sustained a workplace injury and lodged a claim for workers compensation.
-There is no prejudice to the employer. The Application lodged in U2023/7058 provided the employer with clear notice of the issues raised by the Applicant in respect of his dismissal. The employer has now participated in a conciliation conference with the Applicant (who was not represented) and was not able to reach an outcome.
-The Applicant is not a sophisticated person and has English as a second language. The Commissioner Mirabella has already noted the assistance the Applicant required to lodge the Application in U2023/7058.”
-There is clear authority by way of previous decision of the Commission to allow for the extension of time when a self-represented Applicant has lodged an Application seeking an unsuitable remedy Lane v Kangaroo Island Dive & Adventures Pty Ltd [2010] FWA 393.
On 17 October 2023 my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on Wednesday, 6 December 2023 in respect of the extension of time issue and provided directions for the filing of material.
On 2 November 2023 the Respondent filed a Form F8A Employer Response. The Respondent raised two jurisdictional objections, the first being that the Application was made out of time, the second was the Applicant had not been dismissed.
This Decision only deals with the extension of time objection.
The Applicant through his representative filed a submission and a copy of a Decision of Commissioner Mirabella dated 25 August 2023[1] in respect of a jurisdictional objection made by the Respondent in respect of a s.394 Application. No witness statement was filed by the Applicant.
The Respondent filed submissions and copies of documents referred to in the submissions which appeared to relate to the merits of the Application.
The Hearing was conducted at 12:00pm (SA) Thursday, 6 December 2023 by teleconference. The teleconference was recorded. Mr Anthony Reynolds (of counsel) sought and was granted permission pursuant to s.596(2)(a) of the Act with consent of the Respondent. The Respondent was represented by Ms Shen Kurt.
A copy of the material filed was collated into a Digital Court Book and distributed to the parties prior to the Hearing. The entirety of the Court Book was received into evidence with due weight being accorded to the material based in its admissibility (hearsay, relevance etc).
No witness evidence was submitted by the parties.
Mr Reynolds expanded on his written submissions. Ms Kurt relied on her submissions.
The relevant facts are largely not in dispute and are summarised as follows. It was submitted that:
· Mr Shahsawari is not a sophisticated person and has a limited grasp of the English language. As Mr Shahsawari did not say anything during the Hearing, I am unable to express a view of that matter. I note Mr Shahsawari appeared before Commissioner Mirabella with the assistance of an interpreter.
· The Respondent is a labour hire provider. Mr Shahsawari worked for a period at the Visy Recycling Centre at Kilburn in South Australia.
· On 1 August 2023 Mr Shahsawari lodged a s.394 application in relation to his alleged dismissal which he originally stated occurred on 6 June 2023.
· The Applicant sought an extension of time (EOT) before Commissioner Mirabella.
· The EOT Hearing was conducted by way of determinative conference on 25 August 2023. At the determinative conference Mr Shahsawari contended that the correct date of his alleged dismissal was 13 July 2023. The Respondent did not engage in this process or file any material. Commissioner Mirabella determined that the s.394 Application was filed within time.
· A Conciliation Conference was conducted on 28 September 2023. The Applicant was not represented by a lawyer at this time. The matter did not resolve.
· Mr Shahsawari has a workers compensation entitlement arising from a workplace injury on 6 June 2023.
· Mr Shahsawari sought legal advice on 29 September 2023. It appears that he was advised that any unfair dismissal remedy (presumably compensation) would adversely impact his payable entitlements under workers compensation.
· Mr Shahsawari discontinued his s.394 claim on 29 September 2023 and submitted this s.365 Application. Mr Reynolds advised me that Mr Shahsawari was aware that he would need to be granted and extension of time in order to pursue the claim and this was not guaranteed.
· Mr Shahsawari contends that the Respondent has not suffered prejudice. This was not disputed by the Respondent.
· Mr Shahsawari contends that the merits is a factor in his favour. The Respondent contends there has been no dismissal.
· Mr Reynolds submitted there is merit in the Commission hearing the case as it is related to a General Protections Application and the Respondent has not provided written reasons for the termination or alternatively the inability of offering further work placements.
· Mr Reynolds referred me to the Decision of Lane v Kangaroo Island Dive & Adventures Pty Ltd[2] which was said to be akin to Mr Shahsawari circumstances.
· Mr Reynolds also referred me to the Decision in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital[3] which was said to support the proposition that the Commission could conduct a conciliation conference prior to determination of whether an Applicant had been dismissed from their employment. I note that this Decision appears to have been overtaken in the Decision in Coles Supply Chain Pty Ltd v Milford.[4]
The last day to file the Application on time was 3 August 2023. The Application was filed on 29 September 2023. The period of the delay is 57 days.
Mr Shahsawari needs to be granted an extension of time pursuant to s.366(1)(b) in order to proceed with his s.365 application.
Applicable Law
Section 366 of the Act relevantly states:
“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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[5] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
The reason for the delay appears solely based on the realisation by Mr Shahsawari after seeking legal advice on 29 September 2023, that any award of compensation by the Commission would be adversely impacted by the Applicant’s receipt of income payments in respect of his workers compensation claim. Mr Shahsawari appears to ignore the capacity for the Commission to make a finding that his dismissal (if so found) was unfair, or potential for reinstatement to be awarded.
This Applicant’s position is distinguishable from the position in Lane v Kangaroo Island Dive & Adventures Pty Ltd (Lane). In Lane, the Applicant filed a s.773 claim against a National System Employer. The Commission Member in that case determined that the Commission had no jurisdiction to hear the s.773 application and that Applicant was permitted an extension of time for his subsequent s.365 claim. In this matter Mr Reynolds concedes that there was no barrier to the s.394 Application continuing, noting that the remedy for a s.365 Application could be more advantageous that compensation under the s.394 remedy.
In Soubra v Adapt-a-Lift Group Pty Ltd (Soubra),[6] the applicant made an unfair dismissal application, withdrew the application, and then made a general protections application out of time – based on their preference regarding the type of application to pursue. At paragraph [19], it was said:
I do not accept that a purely preferential decision to pursue an alternative cause of action because it would have more merit and prospects of success if it were a general protections claim constitutes an acceptable reason for delay. In Brian Turner v Metropolitan Fire and Emergency Services Board, Deputy President Dean considered an extension of time application for an Applicant who made an unfair dismissal application within the statutory time limit, but subsequently discontinued and filed a general protections application outside the statutory time limit. While Mr Turner claimed that he had obtained advice which led him to mistakenly lodge an unfair dismissal claim, the Deputy President found that there was no reason given or evidence adduced to support the assertion that the unfair dismissal application was an incorrect or invalid application.
At paragraph [20] in the decision of Soubra, it was also said:
The Applicant has similarly elected to discontinue the UD Application and pursue the Application. That election was not made because the UD Application could not proceed, but because the Applicant saw “more merit and prospects of success” in the Application. That is not a credible explanation for the whole, or a part, of the period of delay in this matter.
In my view the circumstances of Soubra are much more aligned with the facts in this matter than those of Lane.
I do not accept that Mr Shahsawari has explained the period of the delay. I do not accept that his circumstances (even when taking into account any limitations on his English language skills) can be properly described as ‘exceptional circumstances’. Mr Shahsawari’s s.394 Application was not made mistakenly, nor was it unable to be pursued. Mr Shahsawari made a preferential decision to lodge an alternative cause of action based on the potential for increased financial outcome.
This factor weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
I accept that the conduct of Mr Shahsawari in filing and pursuing his s.394 application was action taken to dispute the dismissal. This weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent did not submit that the circumstances had resulted in prejudice.
The merits of the application
In terms of the merits of the application, whilst there are factual disputes that I have insufficient evidence to determined, I accept that the application is not without some merit. This weighs in favour of the granting of an extension of time.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
Having considered all the material before me and I am not satisfied that the Mr Shahsawari’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[7] reflecting this decision will be issued.
COMMISSIONER
[1] [2023] FWC 2123.
[2] [2010] FWA 2929.
[3] [2013] FWCFB 6321.
[4] [2020] FCAFC 152, 279 FCR 591.
[5] [2011] FWAFB 975.
[6] [2020] FWC 5366.
[7] PR769154.
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