Mazhar Hussain v Australian Concert and Entertainment Security Pty Ltd T/A ACES Security Group

[2020] FWC 5980

[2020] FWC 5980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mazhar Hussain
v
Australian Concert and Entertainment Security Pty Ltd T/A ACES Security Group
(C2020/7067)

COMMISSIONER YILMAZ MELBOURNE, 9 NOVEMBER 2020

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 17 September 2020, Mr Mazhar Hussain lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Hussain was employed as a casual security guard by Australian Concert and Entertainment Security Pty Ltd T/A ACES Security Group (ACES) on 22 July 2020, until his termination of employment on 24 August 2020.

[2] Mr Hussain submits ACES terminated his employment because he worked for another company and worked 24 hours straight. Mr Hussain submits his former employer asked him to fill in a shift which he agreed to do after working a shift for ACES, but he denies that he worked 24 hours straight. He submits his termination of employment is discriminatory because other security guards worked for multiple employers.

[3] ACES objects to the general protection application and to the extension of time application. ACES submits that Mr Hussain was terminated because he worked 24 hours straight for two different security companies which is in breach of the Code of Conduct and fatigue Management Policy. ACES also submits that Mr Hussain admitted to the breach of Code and Policy.

[4] The Respondent was granted leave for legal representation.

[5] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 30 days after the 21-day statutory time limit.

Applicant’s submissions

[6] Mr Hussain submits his termination was unfair because other security guards continue to work despite working for more than one security company. 1

[7] After his termination of employment, he submits he was ill and in self isolation. He submits he filed his application in pdf form late in the evening of 14 September 2020 (the 21^st day since termination), but on filing, received an automated message that the file was not supported. Mr Hussain submits that he waited, expecting that someone from the Commission would call him the next day. After not hearing from the Commission he filed a new application which was successful on 17 September 2020, three days late. Mr Hussain provided no evidence to support his submissions concerning his reasons for the delay in filing the application.

[8] Mr Hussain submits that he challenged his termination of employment and engaged in discussions with the HR Manager post termination.

[9] In his application, Mr Hussain contends that ACES contravened s.351 discrimination, a protection under the Act. 2 Mr Hussain provided no evidence or further particulars other than the submission that other security guards held more than one job and retain employment with ACES. He does however further submit he was placed on a blacklist that other security firms have access to which has resulted in his inability to obtain employment.3

Respondent’s submissions

[10] ACES submits that Mr Hussain was dismissed via email on 24 August 2020 immediately for breaching the Company Code of Conduct and Fatigue Management Policy, which was admitted to by the Applicant. ACES tendered in evidence the letter of termination of employment. 4

[11] ACES make the submission that the Applicant had failed to provide any evidence to support his extension of time application, despite being directed by the Commission’s directions. Mr Hussain could have contacted the Commission by telephone or email to file his application or at least following the failure of his alleged first application not being received. Secondly, the reliance on technical difficulties as a reason for delay is not in their submission sufficient. Thirdly, the Applicant’s application is without merit. 5

[12] ACES submit Mr Hussain’s application for an extension of time should not be granted and it should be dismissed.

Consideration

[13] On 5 November 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[14] General protections applications involving dismissal must be made within 21 days.

[15] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 6 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 7

[17] I now turn to Mr Hussain’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[18] The general protections involving dismissal application was lodged with the Commission on 17 September 2020, three days late.

[19] Mr Hussain explained that he filed his application on the 21^st day late in the evening in a pdf format. However, when he did so, he received an automatic reply stating that his document was not supported. He explains that prior to filing his application, he was in self isolation because he was ill and also engaged in discussions with the Respondent in the hope of changing their position on the termination of employment. It was not until three days later, after receiving no contact from the Commission that Mr Hussain filed a further application. There was no evidence in support of any of the submissions, the illness or failed attempt to file the application. Regardless, the automated message was evident that the application had failed to be successfully filed. The automated message identified a problem with Mr Hussain’s pdf file, had he filed such a file. I do not consider this to be a technical difficulty beyond the scope of Mr Hussain’s control.

[20] ACES rely on a number of decisions of this Commission relating to technical difficulties in support of their submission that Mr Hussain’s reliance on purported technical difficulties is not considered exceptional circumstances. I agree that it is incumbent on Mr Hussain to present evidence in support of his submission. Further there was no argument that the Commission’s portal caused the delay, but rather the document that Mr Hussain allegedly tried to file was not supported.

[21] Without any evidence in support of the submission I cannot accept that the technical error was beyond the control of Mr Hussain, nor that it was of an exceptional nature to warrant consideration for an extension of time. I do not consider Mr Hussain’s explanation to weigh in his favour for an extension of time.

Steps taken to dispute the termination

[22] Mr Hussain alleges that he contested his dismissal and ACES do not contest this submission. This consideration weighs in Mr Hussain’s favour.

Prejudice to the employer

[23] Mr Hussain submits there is no prejudice to the Respondent.

[24] ACES contend that even the mere prejudice would not weigh in favour of an extension of time. 8

[25] ACES did not submit evidence of prejudice, and I am not satisfied that an extension of time will prejudice ACES. However, I agree that the absence of prejudice is not a reason to grant an extension. In my opinion, this consideration is neutral in the circumstances.

Merits of the application

[26] Mr Hussain submits his termination was unfair because other security guards did not lose their position with ACES, but instead had received a warning. However, Mr Hussain misinterprets the reason for the termination which was the breach of the Company’s Code and Fatigue Management Policy. In response to the letter of termination of employment, Mr Hussain disputes that he worked 24 hours straight as alleged by ACES. Mr Hussain provided no evidence of his hours of work for the time in question. He did admit during the hearing that he worked an additional three hours with his former employer after his shift with ACES. Again, no evidence was tendered in support of his submissions.

[27] ACES submit that Mr Hussain did not particularise the alleged general protections breaches and cites Nutty v Blue Star Group Pty Ltd  9 to make the point that the Applicant failed to provide particulars either in written submissions or orally how the application satisfies the requirements of the general protections provisions in the Act.

[28] The Commission is to consider an extension of time before a Court considers the merits of the application. Nevertheless, s.366(2)(d) requires the Commission to take into account the merits of the application in considering an extension of time. There was nothing in the application, outline of argument or in oral submissions that provided an understanding how the general protections provisions were contravened on the ground of discrimination. The absence of any evidence or even particulars raised sufficient doubt about the prospect of success of a general protection application. In this case I do not consider that Mr Hussain demonstrated an application with merit. Therefore, I find this consideration does not weigh in Mr Hussain’s favour.

Fairness between the person and other persons in a like position

[29] Mr Hussain submits he was treated unfairly because other employees remain in employment while holding positions with other companies. Mr Hussain’s submissions do not adequately address the requirements of this consideration. Such a consideration would turn on the facts, and no factual evidence was presented. ACES made no submissions concerning this consideration. Therefore, I find this consideration a neutral factor in regard to the extension of time.

Conclusion

[30] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[31] I have considered the evidence and submissions against each of the factors set out in s.366(2), and I am not satisfied that there are exceptional circumstances against each of the considerations warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr M. Hussain for himself

Ms N. Town for the Respondent

Hearing details:

2020
Melbourne (by telephone)
5 November

Printed by authority of the Commonwealth Government Printer

<PR724365>

 1   Applicant’s Form F8 at Q3.3 and Applicant’s outline of Argument at Q1i.

 2   Applicant’s Form F8 at Q3.2.

 3   Applicant’s Form F8 at Q2.2 and Applicant’s outline of Argument at Q1h.

 4   Respondent’s Form F8A at Q5.1 and attachment.

 5   Respondent’s outline of submissions and oral submissions on 5 November 2020.

 6   [2011] FWAFB 975.

 7 Ibid at [13].

 8 Respondent’s outline of submissions at [30].

 9   [2011] FWAFB 975 at {37] and [38].