Mohamad Ali v Robert Heezeman
[2024] FWC 2153
•15 AUGUST 2024
| [2024] FWC 2153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mohamad Ali
v
Robert Heezeman
(C2024/3453)
| COMMISSIONER MIRABELLA | MELBOURNE, 15 AUGUST 2024 |
Application to deal with contraventions involving dismissal – application filed out of time – extension of time not granted.
On 25 May 2024, Mr Mohamad Ali (the Applicant) made an application under s.365 of the Fair Work Act 2009 for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal (the application).
The Applicant indicated in his Form F8 application at question 1.4 that he had not made the application within 21 calendar days of his dismissal.
The Applicant was dismissed on 10 April 2024, and this is not a disputed matter. For his application to have been filed within time, he needed to file before 2 May 2024. The application was 24 days late.
Section 366(1) requires an application to be made within 21 days after the dismissal or within such further period as the Commission allows. The Commission may only allow a further period within which to file if it is satisfied that there are exceptional circumstances, taking into account:
· The reason for the delay,
· Any action taken by the person to dispute the dismissal,
· Prejudice to the employer (including prejudice caused by the delay),
· The merits of the application, and
· Fairness as between the person and other persons in a like position.
In deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.366(2). These are circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ but that ‘need not be unique, or unprecedented, or very rare’.[1]
The matter was dealt with by way of hearing earlier today at which the Applicant gave evidence in support of his application.
Relevant factors
Section 366(2)(a) – The reason for the delay
The reason for the delay is one of the factors in s.366(2) that I need to weigh up in assessing whether there are exceptional circumstances in this matter, and the reason itself need not be an exceptional circumstance.
The Applicant submits that as a result of the dismissal, he was very stressed and anxious and that he needed to find a job as quickly as possible to pay for his bills. He said at the hearing that he was in ‘shock’ and ‘trauma’ from losing his job. Whilst I accept that the Applicant’s personal circumstances following his dismissal put some pressure on him to find another job, I am not satisfied that the evidence presented adequately explains the delay in the filing of this application. The stress and anxiety following the loss of a job are commonly experienced by applicants in the Applicant’s position.
The Applicant submits and gave evidence at the hearing that a further reason for the delay in his application is that he had made a mistake, in that he had initially made an application under s.394 for an unfair dismissal remedy.
He says he received a call from ‘fair work’ and was advised that he had made the ‘wrong application’.
The mistake of filing the wrong application, particularly when that incorrect application was itself filed out of time, does not adequately explain the delay in the filing of this application.
I am not satisfied that any of the reasons, either individually or combined, given to explain the Applicant’s delay in filing his application would support a finding of exceptional circumstances. This factor weighs against the application for an extension of time.
Section 366(2)(b) – Any action taken to dispute the dismissal
The Applicant says that on 11 April 2024, he sent his former employer an email asking for the reasons he was dismissed and a copy of his contract. He says that after not receiving a response, he sent an Australia Post letter by traceable post disputing his dismissal that was delivered to Robert Heezeman (the Respondent) on 3 May 2024.
The Applicant also filed an application under s.394 with the Commission on 9 May 2024.
The Applicant’s request for information on 11 April 2024 is not a challenge to his dismissal but a request for information. The Australia Post letter and the s.394 application, although challenge his dismissal, are both outside the 21-day statutory period. I do not consider this factor supports a finding of exceptional circumstances.
Section 366(2)(c) – Prejudice to the employer, including prejudice caused by the delay
No submissions were made on this factor and in all the circumstances I will treat it as a neutral consideration.
Section 366(2)(d) – Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances.
The Respondent submits that the reason for dismissal was performance based, in that ‘[t]he Applicant is unemployable in a manufacturing environment’.[2] The Respondent submits that the manner in which the Applicant undertook workplace tasks did not reflect his resume which showed he had five years’ experience as an electrical fitter.
The Applicant submits that the basis for his dismissal was unreasonable.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
I do not consider the merits of the present case to tell for or against an extension of time. I consider this to be a neutral consideration.
Section 366(2)(e) – Fairness as between the person and other persons in a similar position
The parties did not make submissions on this factor, and it will be treated as a neutral consideration.
Are there exceptional circumstances?
Exceptional circumstances may 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.[3]
I found that the relevant factors were either neutral or did not weigh in favour of a finding of exceptional circumstances.
Having regard to all the matters in s.366(2) of the Act and the foregoing, I am not satisfied that there are exceptional circumstances in this case such that I allow the Applicant additional time within which to make his application.
Conclusion
Having found that there are no exceptional circumstances in this case, I cannot grant an extension of time to allow the Applicant to file beyond the statutory period. Accordingly, the application is dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
The Applicant on his own behalf.
The Respondent on his own behalf.
Hearing details:
2024
Melbourne (by video)
15 August
[1] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty) at [13].
[2] Form F8A response filed on 11 June 2024 at question 2.1.
[3] Nulty at [13].
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