Khattar Khawly v Southern Crest Holdings Pty Ltd T/A the Local Service

[2016] FWC 3689

[2016] FWC 3689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Khattar Khawly
v
Southern Crest Holdings Pty Ltd T/A The Local Service
(C2016/1061)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] Mr Khattar Khawly lodged a general protections application.

[2] Given his dismissal took effect 24 February 2016 his general protections application lodged on 5 May 2016 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 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.” [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Khawly said that after he was dismissed he was told that his manager was on holidays and when he returned he would sort out his entitlements. However he said these were empty promises and he was not paid his entitlements.

[6] He contacted the firm every week to find out about his entitlements. He said he met with Mr Jason Mourad on either the 27 February 2016 or 5 March 2016 to discuss his entitlements. He said that it was agreed that the monies Mr Khawly had retained would be kept by him in lieu of payment of his overtime. However he was not paid his holiday pay or pay in lieu of notice.

[7] He said he was advised to lodge this application so that he could pursue his unpaid entitlements. He said when he rang the Commission on 28 April 2016 he explained that he was not paid holiday pay; wages or superannuation and he was told to make this application to claim his unpaid wages. He said that the reason he did not lodge the application until 5 May 2016 was because he needed to ensure he filled out the form correctly.

[8] I am not satisfied that Mr Khawly had a reasonable explanation for the delay. This claim is not a claim for unpaid wages and Mr Khawly has not provided any explanation as to why he did not lodge a general protections claim within the 21 days. This weighs against a finding that there are exceptional circumstances.

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

[9] Mr Khawly was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Khawly did not take any steps to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

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

[11] Mr Mourad gave evidence that he did not have time to deal with this matter. It would disrupt the business and would have financial impact on the business.

[12] While I accept that there may be some prejudice to the employer, that prejudice is not sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[13] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  3

[14] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[15] Mr Khawly said that he had asked about the nonpayment of overtime prior to dismissal though he did not provide any details of this issue. Mr Mourad gave evidence that Mr Khawly did not hand over to the business cash that he received from customers. Mr Khawly accepted that he did this but denied that it was theft because he only did it to get them to pay attention to his claim. Mr Mourad said there was no issue raised about Mr Khawly’s entitlements to overtime or superannuation until after Mr Khawly was dismissed.

[16] Mr Khawly made this application to recover unpaid monies. I advised Mr Khawly that a general protections application was not a vehicle to recover unpaid monies.

[17] I am not able to make any assessment of the merits of the general protections application as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[18] 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”

[19] There were no submissions that there were any persons in a similar position.

Conclusion

[20] I am not satisfied that there are exceptional circumstances. Mr Khawly has not provided a reasonable explanation for the delay and none of the other criteria support a finding of exceptional circumstances. Therefore Mr Khawly’s application for an extension of time is dismissed and accordingly his general protections claim is dismissed.

DEPUTY PRESIDENT

Appearances:

K. Khawly on his own behalf.

J. Mourad for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

31 May.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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