Meidi Bouzerar v Systra Anz Pty Ltd

[2024] FWC 2532

[2024] FWC 2532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Meidi Bouzerar
v

Systra Anz Pty Ltd

(U2024/8453)

DEPUTY PRESIDENT ROBERTS SYDNEY, 18 SEPTEMBER 2024

Application for an unfair dismissal remedy – extension of time – whether exceptional circumstances exist

1. The applicant in this matter, Mr. Meidi Bouzerar, was previously employed by Systra ANZ Pty Ltd under the terms of the Professional Employees Award 2020 (Award). He was employed from September 2020 until his employment was terminated by the company on 28 June 2024.

1. On 20 July 2024, the applicant filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act).

1. It was common ground that the application was made outside the 21-day time limit prescribed by s.394(2) of the Act by one day.

1. The applicant has asked the Commission to extend the time period for the making of an unfair dismissal application. Such an extension can be allowed under s.394(2)(b) and (3) where the Commission is satisfied that there are exceptional circumstances, taking into account the matters referred to in s.394(3). The respondent opposed the application for an extension of time.

Statutory Provisions

1. Section 394(3) provides as follows:

(3) [Extended time limit]

The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

1. I have considered each of the matters referred to in s.394(3) below and for the reasons that follow, I am not satisfied that there are exceptional circumstances which would warrant an extension of time.

Reason for the delay

1. The applicant is a French citizen. He said he was unfamiliar with Commission processes. His evidence was that he only became aware of the possibility of commencing unfair dismissal proceedings on 18 July 2024 and shortly thereafter looked at the Commission’s website to see what the process involved. He accepted that he was aware at that point that a 21-day time limitation period applied. The applicant then attempted to file an application on 19 July 2024, which was within the 21-day time period. He said he was unable to complete the process online because the payment for the filing fee was not accepted. He said he tried to make the payment using different credit cards and made up to 10 attempts to do so without success. He said he made a further attempt on the 20 July. The payment was accepted and the application was filed on that date. The applicant’s evidence on this issue was not contested by the respondent and I accept that he made unsuccessful attempts to file his application within time but was unable to do so because of a technical issue with the Commission’s website.

1. There was no evidence that the applicant made any other attempts to file the application by any other means or that he attempted to contact the Commission to discuss the problem he was having with the filing of the application.

1. The delay required to be considered in s 394(3)(a) is the period after the prescribed 21- day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period[1]. However, the circumstances from the time of the dismissal are to be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period[2].

1. In McClelland v New Horizons Pty Ltd t/a New Horizons[3] Deputy President Saunders said:

   The Applicant did not commence attempting to lodge his application in the Commission until the last day of the 21-day period provided for under the Act. It is not unusual or uncommon for people to experience technical or other computer related difficulties when attempting to upload or send documents electronically. The Commission’s rules cater for such difficulties by providing a range of means by which applicants can lodge applications in the Commission, including by telephone, email, fax, post or using the Commission’s electronic lodgement facilities[4].

1. In circumstances where the applicant was aware that a limitation period applied and took no other steps to complete an application within that period when confronted with the lodgement problem, and where he was not otherwise impeded from taking those steps, I do not consider that there has been a reasonable explanation for the delay such as to weigh in favour of a conclusion of exceptional circumstances.

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

1. It was common ground that the applicant became aware of the dismissal on the date it took effect. The applicant therefore had the benefit of the full 21-day time period in which to make the application. He attempted to file the application on the last date on which the application could be made within time.

1. I do not consider that these circumstances are supportive of a conclusion that exceptional circumstances exist.

Any action taken by the person to dispute the dismissal

1. The respondent submitted that the applicant’s employment was brought to an end because his position was genuinely redundant. On the day of his termination, the applicant disputed his termination by email to the respondent. He said he did not regard the situation as one of genuine redundancy and that he believed his skills could be usefully deployed on other work for the respondent. He also disputed his termination pay. He said he would seek legal advice. He did not take any further steps to dispute the dismissal until the filing of the application.

1. The email sent by the applicant put the respondent on notice[5] that the dismissal was disputed and that advice was being sought. This raised the possibility that proceedings might follow. The disputing of the dismissal weighs in the applicant’s favour in the overall assessment of exceptional circumstances.   

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

1. I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted. However, the mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally.

Merits of the application

1. It is apparent from the evidence that ultimately any conclusion as to the merits of the present application will turn in large measure on the view taken as to whether or not the termination of the applicant’s employment was a case of genuine redundancy. The applicant claimed that there was work that he could have performed for the respondent given his skill set and that he had previously indicated his willingness to do that work, including by working in other locations. He said that the termination was directed to him as an individual rather than his position and that there was work that he was capable of doing that had been allocated to others.

1. The applicant accepted that his ‘utilisation’ in the two months preceding his termination was reduced to in the order of 30%-40% of his normal capacity but said he was still usefully engaged by the respondent at the time of his termination. The applicant’s complaint that he had been paid annual leave over these preceding 2 months without requesting such leave confirmed that there were extended periods where the applicant was not working in the last two months before he was terminated.

1. The respondent maintained that the applicant’s position was the subject of a genuine redundancy. They said the applicant’s work had come to an end and that this was evident by the fact that he had not worked in the months of May and June 2024. Time sheets were provided which supported this proposition. The respondent said, and it was not disputed, that the applicant’s redundancy was discussed with him in advance of the final decision to terminate his employment. The respondent said that attempts were made to redeploy the applicant with the applicant and within the broader corporate group and were made with the applicant’s knowledge, but these efforts were not successful. The respondent pointed to others who had also been made redundant at or about the time of the applicant’s termination.

1. For present purposes it is not necessary or desirable to resolve all contested issues of fact going to the merits of the application[6]. However, given that it was not disputed that the applicant’s workload was greatly reduced in the preceding months and that he was consulted prior to his dismissal, it appears, at least on a prima facie basis, that the applicant would confront some difficulty in demonstrating that these circumstances were not at least indicative of a genuine redundancy[7]. Nonetheless I am unable to draw any firm conclusions as to whether there were any reasonable redeployment options[8] and in the circumstances I am of the view that the merits of the application is a neutral factor in the assessment of exceptional circumstances.

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

1. Neither party drew to my attention any other person with whom the relevant comparison regarding the application of consistent principles in cases of a like kind could be made[9]. I regard this as a neutral consideration.

Conclusion

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v. Blue Star Group Pty Ltd[10]. There the Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. It is accepted that 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, can be considered exceptional.

1. In Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[11], the Full Bench said the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time.  This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional[12].

1. Having considered each of the matters referred to in s.394(3), I am not satisfied that there are exceptional circumstances justifying an extension of time in this case.

1. The application is dismissed. 

DEPUTY PRESIDENT

Appearances:

Mr Meidi Bouzerar on his own behalf.
Ms Nancy Nguyen for the Respondent.

Hearing details:

2:00pm AEST Friday 13 September 2024 by Video Link using Microsoft Teams.

[1] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[2] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank[2015] FWCFB 287 at [12], and see Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

[3] [2020] FWC 5075.

[4] At [13].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36]

[7] See s.389(1) of the Act and clause 25 of the Award.

[8] See s.389(2).

[9] Perry v. Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].

[10] [2011] FWAFB 975 at [13].

[11] [2018] FWCFB 901.

[12] Ibid at [17].

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