Mohammad Nabi v High End Timber Finishing Pty Ltd T/A South Eastern Timber Finishing

[2018] FWC 3579

[2018] FWC 3579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammad Nabi
v
High End Timber Finishing Pty Ltd T/A South Eastern Timber Finishing
(U2018/2764)

COMMISSIONER CIRKOVIC MELBOURNE, 26 JUNE 2018

Application for an unfair dismissal remedy

[1] Mr Mohammad Nabi (“the Applicant”) lodged an application with the Fair Work Commission (“the Commission”) alleging that the termination of his employment by High End Timber Finishing Pty Ltd (“the Respondent”) was unfair.

[2] Given the Applicant’s dismissal took effect on 7 February 2018 and that his Form F2 was lodged on 16 March 2018, the application was lodged 37 days after the date of dismissal. Therefore his application was not made within 21 days of the date the dismissal took effect and consequently the application was lodged 16 days out of time.

[3] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] For the reasons set out below I have concluded that I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3) of the Fair Work Act (“the Act”).

Background

[5] The Applicant began working for the Respondent on 17 September 2014. He performed the role of quality controller and spray painter. The Applicant has little understanding of English having moved to Australia in May 2012 and beginning his life in Australia on Christmas Island. 1

[6] The Applicant filed written submissions to the Commission on 30 April 2018. He attended the hearing on 18 May 2018 and gave sworn evidence through an interpreter. On 18 April 2018 the Respondent indicated to the Commission that he would not be preparing or filing submissions. The Respondent was advised that if it did not file materials, the matter would proceed in the Respondent’s absence. The Respondent was notified of the listing but did not attend the hearing on 18 May 2018. Consequently I heard the Applicant’s case in the Respondent’s absence.

Legislative scheme

[7] Subsection 394(2) of the Act provides that an application under s.394 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

[8] Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances (emphasis added). The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2 where the Full Bench said:

“[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.” [Endnotes not reproduced]

Matters to be taken into account pursuant to s.394(3)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) the reason for the delay;

[1] The Applicant relied on a combination of factors during the hearing and in his written submissions to explain the delay. They can be summarised as follows:

•  He cannot speak English; 3

•  He is unfamiliar with Australian law; 4

•  He called the Commission on his final day of work and was referred to other agencies; 5

•  He did not speak to the Commission directly but rather through an interpreter; 6

•  He was not told by the Commission about the 21 day limit; 7

•  He was unable to use the Commission website because he cannot understand English and the interpreter was only available to assist with telephone calls; 8

•  He sought the assistance of his friend but his friend was unable to find “any time” to assist; 9

•  He also sought the assistance of a work colleague but was told “you do it online yourself”; 10

•  He mistakenly “filled out other forms” such as the Fair Entitlement Guarantee and then understood that he “shouldn’t be doing that form and I have to fill out [the F2].” 11

•  He was awaiting the outcome of his Fair Entitlement Guarantee application as he believed this would “help” with his unfair dismissal application. 12

[2] I conclude that Mr Nabi had no basis upon which to question the relevance of the action he was pursuing – he has limited English, no knowledge of the law, he completed the Fair Entitlement Guarantee and was confused between which government agency or form was appropriate to handle his unfair dismissal application.

[3] This is not a case of an applicant shopping around for causes of action and when one fails starting another. It is a case of an arguably inappropriate application being mistakenly made due to the Applicant’s poor command of English compounded by a lack of support. The Applicant gave evidence that his friends and colleagues were unable to assist him upon being asked. Further the Applicant gave evidence that he has no children who could assist him make his application.

[4] Each of these reasons outlined above do not generally constitute a reasonable explanation for the delay. However when considered together I am satisfied that a reasonable explanation for the delay exists. This weighs in favour of a finding that there are exceptional circumstances.

(a) whether the person first became aware of the dismissal after it had taken effect;

[1] The Applicant was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[2] The Applicant gave evidence that he made contact with the Commission on the day of his dismissal, contacted the Fair Work Ombudsman and completed the Fair Entitlement Guarantee.

[3] I am satisfied that the Applicant took multiple steps to dispute his dismissal albeit he pursued incorrect paths. However overall I consider this factor to be a neutral consideration in this matter.

(d) prejudice to the employer (including prejudice caused by the delay);

[4] Prejudice to the employer will go against the granting of an extension of time. 13

[5] There was no evidence or submission about any prejudice to the Respondent. I consider this factor to be a neutral consideration in this matter.

(e) the merits of the application;

[6] In the matter of Kornicki v Telstra-Network Technology Group 14 the 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:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.” 15

[7] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 16 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[8] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 17

[9] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[2016] FWC 6963 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”

[10] The Applicant provided to the Commission the decision of Deputy President Booth in Ajaz Mohammed v Veolia Transport (NSW) Pty Ltd. 18 In that decision, the Deputy President exercised her discretion and granted an extension of time to Mr Mohammed to lodge his application that was 30 or 31 days out of time. Further the Deputy President concluded that Mr Mohammed had “limited command of English”, attended the registry of the FWA (as it then was) and completed a general protection rather than an unfair dismissal application.19

[11] I have taken into account the analysis of Deputy President Booth in Mohammed and find this authority relevant with respect to this criterion. In doing so I have adopted the approach of the Full Bench in Perry. This weighs in favour of a finding that exceptional circumstances arise.

Conclusion

[12] I am satisfied that there are exceptional circumstances warranting granting the Applicant an extension of time to lodge his application. Consequently I have decided to exercise my discretion and grant the Applicant an extension of time to make his application to 16 March 2018. An order 20 to this effect will be issued with this decision.

[13] Accordingly, the matter will now be referred for further directions so that the merits of Mr Nabi’s unfair dismissal application can be heard and determined.

COMMISSIONER

Appearances:

Mr M Nabi, self-represented.

Hearing details:

2018

18 May

Melbourne.

Final written submissions:

Applicant’s Outline of Submissions

Printed by authority of the Commonwealth Government Printer

<PR608228>

 1   Transcript of Proceedings, PN70.

 2   [2011] FWAFB 975

 3   Form F2, [1.4].

 4   Ibid.

 5   Transcript of Proceedings, PN41.

 6   Ibid PN43.

 7   Ibid PN50.

 8   Ibid PN52-53.

 9   Ibid PN80.

 10   Ibid.

 11   Ibid PN81.

 12   Ibid PN116.

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 14   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 15   Ibid.

 16   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 17   Wilson v Woolworths [2010] FWA 2480, [24]-[29].

 18   [2013] FWC 1774.

 19 Ibid [29].

 20   PR608472.