Mohammad Hakim v Vitex Pharmaceuticals

[2019] FWC 124

[2019] FWC 124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mohammad Hakim
v
Vitex Pharmaceuticals
(C2018/6089)

COMMISSIONER WILLIAMS PERTH, 14 JANUARY 2019

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Mohammad Hakim (Mr Hakim or the Applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] The Applicant’s dismissal took effect on 13 September 2018. His application was made on 30 October 2018. This application was therefore made after the 21 day time limit had passed.

[4] Consequently on 15 November 2018 I wrote to the Applicant explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

[5] The Applicant has provided a written submission and the Respondent has similarly provided a written submission in reply. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there exceptional circumstances?

[6] The Applicant submits that the following are exceptional circumstances,

1. He had sought to keep his position with the Respondent even though he was going through a difficult time.

2. He presented himself for the independent medical examination in good faith because he did not want to lose his job. This was not easy and he needed to be mentally and physically supported by a support person at the medical examination.

3. His actions at the medical examination show symptoms of abnormality such as post-traumatic stress disorder (PTSD); a healthy mentally stable person would act differently to the Applicant.

4. The Applicant has no formal education and no knowledge of workplace rights, job termination and dispute resolution.

5. The Applicant sought help from his sibling to send emails to the Respondent’s HR Manager in relation to the disciplinary investigation.

[7] The Applicant also submits that he has never physically attended any disciplinary meeting with his employer and the Applicant did not fill out the Fair Work Commission application himself due to his mental and physical incapacity however his brother filled this out for him.

[8] Documents from two doctors were provided by the Applicant as follows.

[9] A medical certificate dated 31 October 2018 from Dr Don Ramjan that certifies the Applicant was involved in a workplace injury in 2017, that he has undergone multiple surgeries and therapies and “As a result of this surgery he is undergoing significant level of psychological impairment - depression - related to this injury” (sic).

[10] A letter dated 19 November 2018 from Ms Michelle Fung (Ms Fung), Psychologist, which explains that the Applicant was referred to Ms Fung following a workplace injury and he has attended 18 psychology sessions.

[11] Ms Fung says the Applicant reported starting to experience symptoms consistent with PTSD and depression following the workplace injury. This diagnosis was confirmed by his Psychiatrist. The letter details the treatments and the Applicant’s progress made to date.

[12] The letter states the termination by his employer was of great disappointment to the Applicant and has led to an increased sense of uncertainty, insecurity and worries for his future which has exacerbated his symptoms. The letter states that in summary progress has been slow but never the less positive in therapy. With his recent termination he has taken a few steps back in terms of progress which is likely to prolong his recovery.

[13] In addition attached to the application was a letter dated 24 October 2018 from Dr Blagoje Kuljic (Dr Kuljic) which states the Applicant has a major depressive disorder and PTSD and lists his current medication.

The reason for the delay

[14] Of the five circumstances the Applicant submits are exceptional the first three concern the Applicant’s actions and behaviour in the period prior to his dismissal. None of these first three circumstances are acceptable reasons for the delay in making the application.

[15] With respect to the Applicant’s lack of awareness about his workplace rights and his lack of formal education neither of these are out of the ordinary; such circumstances are routinely encountered. Neither of these are acceptable reasons for the delay nor are they exceptional circumstances.

[16] Turning to the Applicant’s mental health neither the medical certificate, nor the letter regarding the Applicant’s health from Ms Fung, nor Dr Kuljic’s letter provide a satisfactory explanation for the delay in making the application. These documents do not provide any insight into the extent to which the Applicant was incapacitated in the period after his dismissal took effect and do not indicate whether or not he was able to make this unfair dismissal remedy application earlier than the date on which it was made.

[17] A Full Bench of the Fair Work Commission in Australian Postal Corporation v Zhang 1 with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application held at [22] as follows:

“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”

[18] Consequently I am not satisfied that on the evidence before me the Applicant’s mental health was an acceptable reason for the delay nor was it an exceptional circumstance.

[19] Finally the fact that the Applicant’s brother completed the application form filed with the Fair Work Commission and on other occasions has assisted the Applicant is not of itself an acceptable reason for the delay nor an exceptional circumstance.

[20] I do not accept that the particular circumstances in this instance provide an acceptable reason for the delay nor that either individually or cumulatively they are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[21] There is no evidence that the Applicant took any action to dispute his dismissal other than the making of this application.

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

[22] Notwithstanding the Respondent’s submission I do not accept that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[23] The application is made under section 365 of the Act. The Applicant alleges the Respondent contravened section 351 of the Act by taking adverse action against him, dismissing him, because of his physical and mental disability.

[24] It is apparent from the termination of employment letter dated 13 September 2018 that the Respondent’s reason for dismissing the Applicant included the fact that in August 2018 the Applicant was directed to attend an independent medical examination to assess his fitness for work and ability to fulfil the inherent role requirements of his position.

[25] The Respondent says that on 4 September 2018 the Applicant did attend that medical examination but refused to fully participate.

[26] A letter dated 5 September 2018 sent to the Respondent by Dr Chow, who had conducted the medical assessment, indicated that after some discussion the Applicant walked out with his support person and told the doctor to inform the employer that he had turned up for the appointment. Dr Chow wrote that the medical assessment was ended prematurely because the Applicant walked out before any information from him could be obtained.

[27] Consequently the Respondent on 5 September 2018 sent a show cause letter to the Applicant asking him to explain why his employment should not be terminated.

[28] The Applicant responded by email on 7 September 2018 explaining that at the medical assessment with Dr Chow he had asked to record the assessment but the doctor had declined to agree to this. He referred to the doctor as being “full of shit” because he had asked the Applicant whether he was scared because the doctor said he looked anxious. The Applicant in his email denied that he had failed to participate in the medical assessment.

[29] A subsequent show cause meeting was held where the Applicant had an opportunity to explain why his employment should not be terminated. The Respondent’s termination of employment letter indicates its view that the Applicant was unable to explain why he considered it reasonable to terminate the medical assessment. As a consequence of these circumstances the Respondent terminated the Applicant on the basis that the relationship had broken down.

[30] As is often the case without the matter being fully argued it is difficult for the Fair Work Commission to determine whether the merits of the application do or do not support an extension of time. Consequently I view the merits of the application as a neutral factor in this decision.

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

[31] There is no information regarding fairness between the Applicant and other persons in a similar position.

Conclusion

[32] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[33] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[34] An order [PR703720] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 27 November 2018.

Respondent, 7 December 2018.

Printed by authority of the Commonwealth Government Printer

<PR703719>

 1   [2015] FWCFB 5285.