Mohammad Mehdi Hamidi Manesh (Applicant) v Southern Cross Care (SA) Pty Ltd (Respondent)

[2019] FWC 7187

[2019] FWC 7187

The attached document replaces the document previously issued with the above code on 17 October 2019, to correct a typographical error at paragraph [5].

Associate to Deputy President Mansini.

18 October 2019.

[2019] FWC 7187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mohammad Mehdi Hamidi Manesh
(Applicant)
v
Southern Cross Care (SA) Pty Ltd
(Respondent)

(C2019/1100)

DEPUTY PRESIDENT MANSINI MELBOURNE, 17 OCTOBER 2019

Application to deal with a general protections dispute involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that the Applicant did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. These are the reasons for that decision.

Was the application made out of time?

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] There is a question as to whether the Applicant was dismissed. The Respondent claims that the Applicant voluntarily resigned his employment, which is disputed. For present purposes, it is sufficient that the Commission has before it an application that on its face alleges dismissal in contravention of Part 3-1 of the Act. 1

[5] It is not contentious that the Applicant’s last day of employment was 5 December 2018. The Applicant did not lodge his application until 20 February 2019. Accordingly, the period of 21 days ended at midnight on 27 December 2018 2 and the Application was lodged 54 days out of time.

[6] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent opposes.

Are there exceptional circumstances?

[7] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.

[8] The exceptional circumstances test establishes a high hurdle for an applicant. 3 In this context, 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.4 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.5

[9] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an “acceptable” or “reasonable” or “credible” explanation. 6 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.7 Ultimately, it is a question of degree and insight.8

[11] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 9

[12] In summary, the Applicant gave the following reasons for his delay:

a) Unfamiliar with “the system” and unaware that he could obtain representation by joining a union until 30 days after his dismissal;

b) In the period between being dismissed and filing this application, his many job applications and interviews for new jobs were unsuccessful; and

c) An overnight hospital stay on 21 January 2019.

[13] The Applicant has lived in Australia for 7 years and English is his second language. However, he acknowledged in evidence that he had contacted both the Fair Work Commission and the Fair Work Ombudsman about his options, and was provided with a list of sources from which to obtain advice. By his own conduct, the Applicant has demonstrated his capacity to navigate Australia’s workplace laws and bring this general protections claim. He simply did not do so until after the statutory timeframe. In any event, mere ignorance is not an acceptable reason for delay. 10

[14] That the Applicant chose to focus on attempting to mitigate his loss by finding other employment is most appropriate however is not a sufficient explanation for the delay.

[15] The Applicant also said his delay was caused in part by his hospital stay. Despite acknowledging he understood it may be required, he did not produce any documented medical evidence in support. In evidence, he described the procedure requiring an overnight hospital stay as “not a big operation, just one night in hospital, a couple of stitches on my back that’s all”. Even accepting the Applicant’s oral evidence, the surgery took place 25 days after the expiry of the statutory time for lodging this application. In all of the circumstances I do not consider this amounts to a reasonable explanation for the delay.

[16] The absence of an acceptable, reasonable or credible explanation for the delay weighs heavily against a conclusion that there were exceptional circumstances in this case.

Action taken to dispute the dismissal – s.366(2)(b)

[17] On 6 December 2018, the day after the Applicant had signed a resignation letter, he presented for work at another of the Respondent’s aged care facilities. At that time, he was of the belief that he had resigned from the Bucklands facility only and could still work at other facilities. He was directed to leave the workplace and to wait to hear from human resources.

[18] The Applicant also contacted Mr Jason Williams, then Care Support Team Leader, on two occasions in early December 2018. The Applicant claims to have asked about picking up more shifts. At least the second conversation took place after 5 December 2018, in which Mr Williams informed the Applicant that he was no longer employed with the Respondent and could not work with the Respondent.

[19] Notwithstanding the undisputed facts about these events, the Respondent denies that the Applicant took any steps to dispute the circumstances of his resignation after he resigned on 5 December 2018; and further states that he did not allege he had been dismissed from his employment prior to bringing this application.

[20] Plainly, some effort was made by the Applicant to communicate with the Respondent after the events of 5 December 2018 and challenge its characterisation of those events. The Respondent was on notice that, at the very least, the Applicant believed he was still able to work in other facilities for the Respondent.

[21] It was not asserted that any further steps were taken to formally dispute the dismissal.

[22] I consider the Applicant’s conduct in this respect weighs slightly in favour of a finding of exceptional circumstances in the present case.

Prejudice to the employer – s.366(2)(c)

[23] The Respondent properly accepted that there is no particular prejudice caused by the delay. However, the mere absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional.

[24] I consider this to weigh slightly in favour of a conclusion that there were exceptional circumstances in the present case.

Merits of the application – s.366(2)(d)

[25] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[26] The circumstances leading to the cessation of the Applicant’s employment include serious allegations of multiple breaches of the Respondent’s workplace policies resulting from an incident of inappropriate manual handling of an elderly resident. Those allegations were never conclusively proved as the Applicant tendered a letter of resignation before the investigation was finalised.

[27] The Applicant contends that the allegations of serious misconduct and evidence regarding the particular incident were entirely fabricated and contrived, because of his race and perceptions of his religious beliefs. He alleges this treatment was intended to, and did in fact, force him to resign.

[28] On the materials before the Commission, the Applicant’s claim would be subject of a compelling jurisdictional objection on the basis that he was not dismissed. It is acknowledged that the Applicant can otherwise at least make out the basis for a general protections claim. However I do not consider the materials on merit weigh in favour of, and are neutral to, whether there are exceptional circumstances in this case.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[29] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[30] I consider this to be a neutral consideration in the present matter.

Conclusion

[31] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[32] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable, reasonable or credible explanation for the substantial delay in filing the application which weighs heavily against the grant of an extension in this case. The absence of prejudice and the limited action taken to dispute the dismissal together weigh slightly in favour of the grant of an extension, whereas other factors weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[33] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713447>

 1   Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321.

 2 Being the next business day following a national public holiday, see: s.36(2) of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 and applicable pursuant to s.40A of the Act.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 4   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine[2016] FWCFB 6963 (Perry) at [21].

 5   Ibid.

 6   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd[2018] FWC 7355 at [7].

 7 Stogiannidis at [39].

 8   Green v Bilco Group Pty Ltd[2018] FWC 6818 at [8].

 9   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]-[33]; Perry at [23].

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].