Mian Saeed v Wild Breads Pty Ltd
[2015] FWC 8677
•22 DECEMBER 2015
| [2015] FWC 8677 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mian Saeed
v
Wild Breads Pty Ltd
(U2015/13683)
COMMISSIONER JOHNS | SYDNEY, 22 DECEMBER 2015 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] On 8 December 2015 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Mr Mian Saeed (applicant) and dismissing his application for an unfair dismissal remedy.
[2] On 9 December 2015 the applicant requested reasons for that decision. These are those reasons.
[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3
[4] This decision is about whether the Commission should allow the applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his
a) application was lodged on 19 October 2015
b) that being 508 days after his employment was terminated by Wild Breads Pty Ltd (respondent) on 29 May 2014.
The jurisdictional objection
[5] On 27 October 2015, the Commission wrote to the applicant, outlining the matters the Commission was required to consider by the FW Act and asked him to provide a statement addressing those matters within 14 days.
[6] On 15 November 2015 the applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the applicant says that, although the termination took effect on 29 May 2014 he was not aware that he had been removed from the respondent’s books until he received an email from the respondent on 11 October 2015.
[7] On 30 November 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent says there are no exceptional circumstances warranting the granting of an extension of time given the length of time that has elapsed.
Legislative scheme
[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) 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.
[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. 5
Facts leading up to and relating to the dismissal
[10] The following facts where either admitted or not contested:
a) the applicant last performed work for the respondent in April 2014;
b) he lodged a Workcover claim as a result of an injury to his shoulder;
c) that claim was initially rejected on 30 May 2015;
d) the applicant lodged an appeal against that decision in the Queensland Industrial Relations Commission;
e) that appeal was upheld on 18 February 2015. 6
Consideration
Paragraph 394(3)(a) - The reason for the delay
[11] It is undisputable that there were 508 days between when the termination of the applicant’s employment took effect and when a proper application was filed with the Commission.
[12] The applicant says that he was unaware that he was no longer employed by the respondent until he received an email from the respondent on 11 October 2015. The application was filed eight days later on 19 October 2015.
[13] It is clear on the material submitted by the applicant that he was aware of the termination of his employment in May 2014. He wrote to the Commission on 15 November 2015 in the following terms “On 27 May 2014 when I was unfairly dismissed from my work…” I did not accept his claim that he was not aware of the same until October 2015. There was nothing exceptional about the matters put forward by the applicant.
[14] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[15] The applicant says that he only became aware of the termination of his employment when he received an email from the respondent on 11 October 2015. That is not the case. Considered in its entirety the evidence disclosed that the applicant knew of the dismissal in May 2014.
[16] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[17] The applicant took the following action in relation to the dismissal:
a) he lodged a claim with Workcover QLD in relation to his shoulder injury and then an appeal against that decision;
b) he made contact with the respondent in February 2015 seeking a return to work;
c) he lodged this application.
[18] The action taken by the applicant weighed in favour of granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[19] The Respondent did not disclose that it would suffer any prejudice as a result of the delay in the filing of the application.
[20] Prejudice to the employer was a neutral consideration.
Paragraph 394(3)(e) - The merits of the application
[21] In the matter of Kornicki v Telstra-Network Technology Group 7the 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 lodgment. 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.” 8
[22] The Commission, as presently constituted, notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.” 9
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
The substantive factual contest between the applicant and the respondent is whether the applicant abandoned his employment.
[23] If the applicant can establish that he had a reasonable expectation of ongoing employment following his period of absence due to his injury then he may be able to establish that the termination of his employment was harsh, unjust or unreasonable and, consequently, unfair. In this regard the applicant’s case is not without merit or lacking in any substance.
[24] Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[25] The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
[26] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[27] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[28] The application for an extension of time was refused. The jurisdictional objection was upheld and the substantive application for an unfair dismissal remedy was dismissed.
[29] An Order to this effect was issued on 8 December 2015. 10
COMMISSIONER
1 PR574861.
2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
3 Section 394(3) FW Act.
4 [2011] 203 IR 1.
5 Above note at [13].
6 Saeed v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 028.
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid.
9 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
10 PR574861.
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<Price code C, PR575086>
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