Liban Farah v Computer Science Corporation T/A CSC

[2015] FWC 3960

[2015] FWC 3960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Liban Farah
v
Computer Science Corporation T/A CSC
(C2015/2398)

DEPUTY PRESIDENT KOVACIC CANBERRA, 12 JUNE 2015

Application to deal with contraventions involving dismissal.

[1] Mr Liban Farah (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 7 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Computer Sciences Corporation T/A CSC (the Respondent) on 9 May 2014 in contravention of the general protections provisions in the Act. As the application had been lodged over 300 days outside the statutory timeframe for lodgement, the Commission issued Directions on 14 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The extension of time issue was heard by the Commission on 9 June 2015.

[3] For the reasons set out below I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be dismissed.

Background

[4] Mr Farah commenced employment with Paxus Australia Pty Limited (Paxus - the Employer) on 25 February 2014 as a Consultant. Paxus is an information technology specialist recruitment company. While employed by Paxus, Mr Farah was placed with CSC-GOS-WA (Chevron). According to his application, Mr Farah worked as a service desk analyst while placed with CSC-GOS-WA (Chevron).

[5] The contract Mr Farah entered into with Paxus stated at clause 10.2 of the “Conditions of Contract with Consultant” attached to the contract that:

“Paxus may terminate this agreement at any time by giving the Consultant written notice if:

(a) ...; or
(b) Client requires Paxus to terminate Consultant’s Services or the contract between Paxus and the Client expires or is terminated.”

[6] CSC withdrew the work causing Mr Farah’s contract to come to an end on 9 May 2014. Paxus provided Mr Farah with an Employment Separation Certificate on 8 October 2014 citing “End of season or contract” as the reason for the separation.

[7] In his application, Mr Farah contended that he was informed of his end date after he had requested a modification to his office, i.e. the provision of a sit-stand desk to accommodate his medical condition. Mr Farah further contended that his dismissal was in contravention of s.351 of the Act which deals with discrimination, citing disability and race as the grounds of discrimination.

[8] As previously noted, Mr Farah’s general protections application was received by the Commission on 7 April 2015, over 300 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[9] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] In his application, Mr Farah stated that the reason for the delay in lodging his application was as a result of the delay in him being provided with an Employment Separation Certificate “After which, I was busy filling another dismissal that take place with the same sort of issue in a different company.” In his written submission, Mr Farah cited a number of reasons for the delay in lodging his application. These included that:

• as he understood that his contract had come to an end on 9 May 2015 as per the Employment Separation Certificate, he was under the “impression that I did not need to make an application for a dismissal”; and
• because of his injuries “I was basically bed bound at home”.

[12] Mr Farah further submitted that he was unable to lodge his application earlier as he was incapacitated as a result of an injury which he suffered outside of work after his employment ceased and which aggravated his severe medical condition.

[13] At the hearing, Mr Farah reiterated that his medical condition precluded him from lodging his application within time and that he completely forgot to lodge his application due to stress. No details were provided by Mr Farah regarding his medical condition.

[14] CSC submitted that Mr Farah had not provided any evidence to support his claim that his medical condition prevented him from lodging his application. CSC also submitted that it appeared that a principle reason for the delay was that Mr Farah “first sought to prosecute another dismissal application.” At the hearing, CSC highlighted that Mr Farah had given a number of reasons for the delay in lodging his application and that his submissions in this regard were not consistent. CSC also pointed to the significant delay involved in making the application.

[15] At the hearing, the Commission asked Mr Farah several questions regarding the other dismissal application referred to in his application. By way of background, that other dismissal application is being dealt with by the Commission as presently constituted. In particular, the Commission highlighted that based on that other application Mr Farah was employed by another company for the period 9 October to 19 December 2014 and that his application in respect of that matter was received by the Commission on 12 February 2015. As such, the Commission sought further clarification as to the nature and period of Mr Farah’s incapacity. Mr Farah was unable to clarify the precise period of his incapacity.

[16] Further, Mr Farah did not provide any evidence to substantiate his claim that he was incapacitated for the entire period between the cessation of his employment and the lodgement of his application. No medical certificates were provided either disclosing the nature of Mr Farah’s injury/medical condition and how they precluded him from lodging his application or substantiating Mr Farah’s claim of stress. I also note that feeling stressed is not unusual in circumstances where a person has been dismissed.

[17] Taken together, these factors do not support a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[18] Mr Farah submitted that he had tried to contact a Mr Shaun Lucas of CSC and CSC’s human resources area following his dismissal but that his calls were not returned. However, it appears that Mr Farah did not take any further steps to contact CSC after the failure of these initial attempts.

[19] CSC submitted that at no time had Mr Farah taken steps since 9 May 2014 to discuss his concerns, adding that it had no knowledge of Mr Farah attempting to contact Mr Lucas. CSC also pointed out that Mr Lucas was no longer employed by CSC, having left the company in November 2014.

[20] Based on the above, it appears that Mr Farah may have sought to contact CSC shortly after he ceased working there but that in the absence of any response from CSC he did not persist with his efforts. There was no material before the Commission indicating whether or not Mr Farah raised concerns about his dismissal with Paxus.

[21] The significant gap in Mr Farah’s alleged attempts to contact CSC and the lodging of his application does not support a finding that there were exceptional circumstances.

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

[22] Mr Farah made no submission on this point.

[23] CSC submitted that it would be prejudiced defending a claim where there had been such a significant passage of time since Mr Farah ceased working at CSC, particularly given some key staff had since left the company which would result in a decreased capacity for CSC to call witness evidence.

[24] While I note CSC’s submissions, the concerns it raises are not necessarily insurmountable. As such, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[25] Mr Farah submitted that CSC and Paxus are one and the same company. He provided no material to support that contention.

[26] CSC emphasised that it was not Mr Farah’s employer or the principal in the relationship between Mr Farah and Paxus. CSC also disputed that it and Paxus were related companies, submitting that Paxus was a preferred service provider of recruitment support to CSC. Further, CSC submitted that it had no knowledge of Mr Farah’s medical condition and that it was therefore confused as to how it could have taken adverse action against him based on his disability.

[27] The material before the Commission, in particular the contract between Mr Farah and Paxus and the Employment Separation Certificate, supports a finding that Paxus, as opposed to CSC, was Mr Farah’s employer. Further, there was no material before the Commission supporting the contention that CSC and Paxus are associated entities. Nor did a search of the company’s respective websites by the Commission provide any support for Mr Farah’s submission in this regard.

[28] Against that background, the merits of the application appear less than compelling.

(f) Fairness as between the person and other persons in a like position

[29] Mr Farah submitted that the whole process was not fair. While this view is understandable, it does not directly relate to this factor.

[30] CSC reiterated its comments that the delay in Mr Farah lodging his application would result in its position being prejudiced. Again, this does not directly relate to this factor.

[31] In the absence of submissions going directly to this factor, I consider it to be a neutral consideration.

Conclusion

[32] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.”

[33] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Key considerations in reaching that conclusion were the absence of any compelling explanation for the delay in Mr Farah lodging his application and, based on the material before the Commission, the less than compelling merits of the application.

[34] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Ms Nerys Jefferson for the Respondent.

Hearing details:

2015.

Canberra:

June 12.

 1   [2011] FWAFB 975

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