Mehrab Shahrokhi v Latin Transport Pty Ltd

[2021] FWC 6443

[2021] FWC 6443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mehrab Shahrokhi
v
Latin Transport Pty Ltd
(U2021/8776)

COMMISSIONER YILMAZ MELBOURNE, 23 NOVEMBER 2021

Application for an unfair dismissal remedy - application lodged out of time - application dismissed

Introduction and background

[1] This decision concerns an application by Mr Mehrab Shahrokhi for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Shahrokhi filed an application on 1 October 2021 and on his form, he states that he was dismissed on 27 July 2021. He notes that his application was not lodged within the 21 statutory time limit.

[3] Latin Transport Pty Ltd (Latin Transport) states that it did not dismiss Mr Shahrokhi. No Form F3 was submitted by Latin Transport despite a number of requests from the Commission to do so, and their assurance that they would.

[4] The parties failed to comply with directions for the filing of materials and this decision follows a non-compliance hearing held before me on 29 October 2021.

[5] The parties were informed on 16 November 2021 that I will issue a decision by 18 November 2021 unless Mr Shahrokhi filed a notice of discontinuance. Further the parties were invited to contact my chambers if they had any further queries. I subsequently received an email advising that Mr Shahrokhi had met with an accident, so a further extension was granted until 23 November 2021 to advise whether he intended to file a notice of discontinuance. As I had not received anything further, I now issue the decision.

[6] The application is 45 days late.

The Applicant’s submissions

[7] In the absence of Mr Shahrokhi’s submissions, I rely on the email and telephone correspondence between the applicant and my chambers, the Form F2 and verbal statements during the non-compliance hearing. No evidence was tendered.

[8] Mr Shahrokhi submits that his employment was not formally dismissed in writing.

[9] On 26 July 2021 he was required to undergo a drug test while at a Linfox site. He consented to the test in writing. More than one test was conducted and while the initial tests were negative, following a further test, he was informed that there was something that could not be made out. He was not given anything in writing, but simply told that he should leave the loaded trailer and was told to leave the site. He states that he underwent 3-4 tests.

[10] Another driver was called in to take the trailer load that was scheduled to be towed by his own truck. Mr Shahrokhi states that the driver told him that he heard that something smelled of marijuana.

[11] After he left the Linfox site with his truck, Mr Shahrokhi immediately went to Epping Hospital as he was instructed but was sent home from the Hospital. The following day he visited his general practitioner to undergo a urine test, which revealed a negative result for cannabis.

[12] He submits that his employer, Latin Transport did not provide any further information regarding the drug test and was not advised when he would be able to resume his duties. He states that Latin Transport never contacted him and each time he contacted them, they could not provide further detail or offer any further work.

[13] In an email to my chambers through his adviser, interpreter and support person he advised that he wished for the email to be accepted as his submissions. The email states among other things, that after the filing of the application he had been called in to perform work by Latin Transport on a sporadic basis and that the relationship was difficult.

[14] During the non-compliance hearing Mr Shahrokhi shared that he was not paid a weekly wage, nor paid any annual or sick leave entitlements. He stated that he was paid per job and the truck that he drove was his own. When I asked if he was an independent contractor, he advised that he had a contract with Latin Transport. However, no documentary evidence was provided to the Commission.

[15] At the conclusion of the non-compliance hearing Mr Shahrokhi undertook to make inquiries of the Commission’s Workplace Advisory Service, contact the Fair Work Ombudsman, consider whether an alternative application is appropriate, for instance a general protection application and to withdraw his application. Following this hearing there was no further contact with my chambers until my Associate made inquiries on 12 November 2021.

[16] Despite the instructions contained in the directions notice including a template document for submissions, there was no undertaking to provide further materials in respect to the extension of time application. Through his adviser, interpreter, and support person, the Commission was instructed that he had not made any further inquiries and wished for this application to proceed.

The Respondent’s submissions

[17] Latin Transport failed to comply with the filing of the form F3 and did not file any submissions in relation to the extension of time application. Further it did not attend the non-compliance hearing.

[18] On 15 October 2021 after earlier failed attempts, Latin Transport was emailed Mr Shahrokhi’s application, a request to file the form F3 and directions for the filing of extension of time submissions. Latin Transport requested a blank form F3 on 18 October 2021.

[19] On 22 October 2021, the Commission received confirmation that the form F3 would be filed by 25 October 2021. In a telephone call which was followed up by email, the respondent stated that the Applicant was not dismissed, that he was stood down and the Applicant also sought alternative work elsewhere. It also stated that Mr Shahrokhi was found to have cannabis in his system and therefore was prevented from working with Linfox and the Bev chain. Mr Shahrokhi was told by Latin Transport that he had to fight his own battles with Linfox and driving under the influence of cannabis was cause for instant dismissal.

[20] Latin Transport stated that they spoke to Mr Shahrokhi’s lawyer and the application was a waste of everyone’s time.

[21] Latin Transport was contacted after failing to attend the non-compliance hearing and my chambers was advised that Mr Sergi no longer wished to be contacted and his wife would be the contact in the future. No further contact from Latin Transport was made to the Commission regarding this matter.

Consideration

[22] 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 under s.394(3).

[23] However, s.394(3) 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) Whether the first person became aware of the dismissal after it had taken effect; and

(c) Steps taken to dispute the termination; and

(d) Prejudice to the employer; and

(e) Merits of the application; and

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

[24] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd  1 (Nulty) 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.” 2

[25] The first issue to be considered is the date of termination. While Mr Shahrokhi states that he was dismissed on 27 July 2021 in his application form, it is not apparent that he was dismissed. Latin Transport state that there was no dismissal. Firstly, at the non-compliance hearing and in the email of 26 October 2021 he stated that the respondent offered him further work albeit sporadically after this application was filed. Of further note were the statements made by Mr Shahrokhi during the non-compliance hearing regarding the engagement arrangements which suggest an independent contractor relationship instead of one of employee and employer.

[26] Part 3-2 of the Act deals with unfair dismissal, it sets out when a person is protected, the elements of an unfair dismissal, the remedies and procedural aspects of applications. The Commission can only be satisfied that a person is unfairly dismissed, if the person has been dismissed. 3 The definition of “dismissed” is found at s.386(a) of the Act, i.e. “the person’s employment with his or her employer has been terminated on the employer’s initiative”. The definition refers to the termination of the employment relationship. Section 386(a) is relevant for the purposes of an application under s.394 of the Act, which provides for the time limitation of applications.

[27] The Full Bench in Ayub 4 considered the common law and various authorities relating to when the conduct of the employer gives effect to a termination of the contract of employment and the date of “dismissal” for the purposes of the unfair dismissal provisions. Relevantly in Ayub, the Full Bench states that to affect a termination of the employment contract, subject to the terms of a contract, one must communicate the termination by plain and unambiguous words or conduct,5 it must specify a time, or the time must be ascertainable6 and the termination cannot be from a date prior to the date it is communicated to the employee.7

[28] Without any evidence other than Mr Shahrokhi’s verbal statement that he was dismissed, neither a dismissal nor a date of dismissal can be reliably determined. Both parties failed to comply with the directions issued for the filing of materials. Despite this Mr Shahrokhi advised that he wished for his application to be determined. On the limited information, I have considered whether to dismiss this application pursuant to s.587(c) of the Act and do consider this option open to me. However, if Mr Shahrokhi was in fact dismissed on 27 July 2021 as he submits, his application for an extension of time should be considered. I do consider that this application should be dismissed pursuant to s.587(c) due to want of prosecution and in consideration of the question whether Mr Shahrokhi was dismissed and whether he was subject to a contract of employment or a contract for services. There is a serious question of jurisdiction that should be determined. However, if there was a dismissal as submitted, the application for an extension of time in my view would nevertheless fail.

[29] For completeness I now turn to the considerations of s.394(3) of the Act and my reasons for denying an extension of time.

The reason for the delay

[30] Mr Shahrokhi provided no submissions regarding the reason for the delay, consequently this consideration does not weigh in his favour.

Whether the person first became aware of the dismissal after it has taken effect

[31] Mr Shahrokhi states that he was dismissed on 27 July 2021. Despite his awareness of his “dismissal” it had no bearing on the delay of the application.

Action taken to dispute the dismissal

[32] Mr Shahrokhi states that he contacted Latin Transport on numerous occasions, and he was either given no information regarding the impact of the drug test nor offered further work. Had Mr Shahrokhi contacted Latin Transport for further work and questioned the “dismissal” as he contends, this consideration would weigh in his favour.

Prejudice to the employer

[33] There is no evidence of prejudice to Latin Transport, however, the absence of prejudice is not a factor that weighs in favour of an extension of time

Merits of the application

[34] Mr Shahrokhi provided no evidence in support of his merit argument. He made statements that he was subject to multiple drug tests, of which he received no material supporting a finding of cannabis in his system. He says a urine test the following day, disputes a positive test result the day before at Linfox, and Latin Transport then ceased to communicate and offer work. Mr Shahrokhi stated that he had a contract with Latin Transport but did not provide it to the Commission.

[35] With an absence of any further detail, I cannot conclude a finding of a meritorious application. Due to the absence of any material, I conclude at best that this consideration to be neutral.

Fairness as between the person and other persons in a similar position

[36] This consideration relates to fairness between the Applicant and persons in a similar position employed by the employer or affected by the same issue. There is no evidence of persons in a similar position or affected by the same issue, nor had Mr Shahrokhi made any submissions on this consideration.

Conclusion

[37] I have not found in favour of Mr Shahrokhi. This application has not met the high bar relating to exceptional circumstances to warrant an extension of time. The scant submissions and absence of any evidence together with the doubt as to whether Mr Shahrokhi was an employee subject to a contract of employment, and that he was dismissed by Latin Transport does not warrant an extension of time. The considerations pursuant to s.394(3) collectively do not weigh in favour of an extension.

[38] An unfair dismissal application must be lodged within 21-days from the date of dismissal. This prescribed time limit should be complied with, except where there are exceptional circumstances warranting an extension of time.

[39] I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case, after having considered each of the considerations or any combination of them collectively. I am not satisfied that the test has been met.

[40] As I have discussed in [28] of this decision, I also considered dismissing this application pursuant to s.587(c) on the basis that the serious question of jurisdiction could not be determined, that is whether Mr Shahrokhi was dismissed, was subject to a contract of employment or contract for services. If the contract with Latin Transport is “for services” he could not have been dismissed, which is fundamental to an extension of time application. It is unfortunate, that despite Mr Shahrokhi’s attempt to obtain a remedy for his dispute with Latin Transport, there is no option but for his application to be dismissed, because he has not satisfied the Commission on either the point of jurisdiction or exceptional circumstances for an extension of time.

[41] Accordingly, the matter will be dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR736115>

 1   [2011] FWAFB 975.

 2 Ibid at [13].

 3 Section 385 Fair Work Act 2009.

 4   Mohammed Ayub v NSW Trains[2016] FWCFB 5500.

 5   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17].

 6   Ibid at [17] – [18].

 7   Ibid at [21], citing Stevanovski v Linfox Transport [2001] AIRC 388, PR903594 (23 April 2001).