Mohammad Shereen v Big Wet Natural Spring Water Pty. Ltd
[2025] FWC 619
•28 FEBRUARY 2025
| [2025] FWC 619 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair dismissal
Mohammad Shereen
v
Big Wet Natural Spring Water Pty. Ltd.
(U2025/851)
| COMMISSIONER PERICA | MELBOURNE, 28 FEBRUARY 2025 |
Application for an unfair dismissal remedy
On 23 September 2024, Mr. Mohammad Shereen was dismissed from his employment with Big Wet Natural Spring Water Pty. Ltd. (Big Wet).
On 25 January 2025, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 103 days late.
The Commission has power to extend the time for making the application if it is satisfied that there are exceptional circumstances under s 394(2)(b).
For the following reasons, I have decided not to grant an extension of time for the making of this application.
Was the application made within 21 days after the dismissal took effect?
The 21-day period does not include the day on which the dismissal took effect. The dismissal took effect on 23 September 2024. The final day of the 21-day period was 14 October 2024 and ended at midnight on that day.
Mr. Shereen’s application was filed on 25 January 2025. It was made 103 days late. I therefore need to consider whether to extend the period to make the application.
I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(a) Mr. Shereen’s reasons for the delay;
(b) when Mr. Shereen first became aware of the dismissal after it had taken effect;
(c) any action taken by Mr. Shereen to dispute the dismissal;
(d) prejudice to Big Wet (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between Mr. Shereen and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[1] I will now consider each of these factors in turn.
Reason for the delay
At the hearing Mr Shereen gave several reasons for his delay in filing the proceeding.
Passing of his son
Around the time of his dismissal, he was beset by tragic circumstances. His son was hospitalised and then, on 9 October 2024, passed away. Consistent with the practice of their faith, Mr. Shereen’s son was buried on 11 or 12 October 2024.
Hospitalisation of his wife
Overcome with grief and suffering depression following her son’s death, Mr. Shereen’s wife was hospitalised on 21 October 2024 for ten days. She was discharged from hospital around 1 November 2024.
Ignorance of the Commission or his unfair dismissal rights
Mr. Shereen argued he was unfamiliar with the Commission or its unfair dismissal jurisdiction. He only became aware of his rights to bring an unfair dismissal proceeding when he was talking to a friend on or around 25 December 2024.
Debating with his wife whether to bring the proceedings
From 25 December 2024, until he filed his unfair dismissal on 25 January he was “debating with his wife” whether to bring the proceedings.
Consideration
Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not have to be unique, unprecedented or rare.
It is unarguable the circumstances that plagued Mr. Shereen up until November 2024 were as exceptional as they were tragic.
It is well settled ignorance of the law is not exceptional but routine. It follows that ignorance of his rights up to 25 December is not an adequate reason for a delay. Further, a debate with a partner about whether to bring a proceeding cannot be exceptional. It is a practice I am sure occurs before any unfair dismissal proceeding is brought.
In those circumstances, although Mr. Shereen had legitimate reasons for the delay up to November 2024, his reasons after November 2024 cannot be regarded as adequate. In those circumstances, this factor counts against an extension of time being granted.
When did Mr. Shereen first become aware of the dismissal after it had taken effect?
It was common ground Mr. Shereen was informed of his dismissal on the day it took effect on 23 September 2024. This factor is neutral in a consideration of whether to extend time.
What action was taken by Mr. Shereen to dispute the dismissal?
Mr. Shereen made submissions that sometime after his dismissal he asked Mr. Opie, the Managing Director of Big Wet, for his job back.
Mr. Opie confirmed at the hearing that this enquiry had been made. Mr. Opie said that he explored whether this request could be accommodated. He was informed by his staff that Mr. Shereen’s position had been filled. On that basis, Mr. Opie told Mr. Shereen that he could not have his job back.
This factor requires an applicant to give evidence of action taken to dispute the dismissal and the reasons given for it. The word “dispute” means to “question the truth, validity or correctness” of an action. Asking for your job back is not disputing the dismissal.
Mr. Shereen offered no other argument that he disputed his dismissal. This factor therefore counts against an extension of time being granted.
What is the prejudice to Big Wet (including prejudice caused by the delay)?
Big Wet conceded there would be no prejudice if an extension of time were to be granted. This factor is therefore neutral in a consideration of whether to extend time.
What are the merits of the application?
The submissions of the parties made it very clear there are deeply contested facts that go to the merits of Mr. Shereen’s application. I will describe three major factual disputes below:
Whether Mr. Shereen resigned
Big Wet maintains Mr. Shereen resigned through a text which read “I would like to resign from my DELIVERY job from Big Wet…” and was therefore not dismissed. Mr. Shereen argues that Mr. Opie forced him to resign after threatening to send him to the police over the alleged misuse of a Big Wet fuel card.
His warning for clocking on and then returning home for two hours
Mr. Shereen was given a written warning on 16 September 2024 which read as follows:
“At these meetings, you were advised that you are employed for a full day being 7am 3pm and our vehicle tracking has shown us that you on numerous occasions you work lesser than your 38hrs week to go home to look after your son/family. You have agreed with this and commented that you perform your schedule runs in lesser hours per week so that you can go home through the day.
Your signed employment contract dated 04 August 2022 states the hours and times you are required to work. This has not occurred which is fraud as you have admitted that you are working lesser hours per week and taking time off without informing us.”
At the hearing, Mr. Shereen argued this practice was condoned by management. Clocking off and returning home was a practice undertaken by many Big Wet delivery drivers. He also argued Big Wet was unconcerned with the practice if the delivery run was completed.
Mr. Opie and Mr. Raghavan, who appeared for Big Wet, vehemently denied it was condoned and noted it was important for the business for time records of its drivers to be accurate. That is why Mr. Shereen was issued with a warning.
The unauthorised use of the fuel card
The vehicles driven by Big Wet drivers have a designated fuel card. Big Wet discovered Mr. Shereen had used one of its fuel cards to pay for fuel on a day he was on sick leave.
At the hearing, Big Wet argued its employees should know this conduct is fraudulent, and it would not be tolerated.
Mr. Shereen argues this was a once off. It was in circumstances where his son was in hospital and in declining health. He arrived at a petrol station and realised he had no money. He used the fuel card in those strained circumstances. He argued he had been a good employee and had only used the fuel card once outside of work in extreme circumstances. Big Wet should not have dismissed him for it.
Consideration
Until I have an opportunity to hear the sworn evidence from relevant witnesses, I cannot make a determination of the merits. The merits turn on deeply contested facts, which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.
This factor is therefore neutral in a consideration of whether to extend time.
Fairness as between Mr. Shereen and other persons in a similar position
No party made compelling submissions on this factor. Therefore, this factor is neutral to a consideration of exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: Mr. Shereen was suffering under extreme and tragic circumstances up to November 2023. After November 2023, the reasons he gave for the delay are not adequate to constitute an argument for an extension of time. This factor therefore counts against an extension of time under s 394(3)(a).
· Action to dispute the dismissal: Mr. Shereen took no action to dispute the dismissal. This factor counts against an extension of time being granted under s 394(3)(c).
The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
· Notification of the Dismissal: Mr. Shereen was notified of the dismissal on the day it occurred. He had the benefit of the full 21-day period to lodge her unfair dismissal application.
· Prejudice to the employer: There is no evidence of prejudice to Big Wet.
· Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time. In those circumstances, the merits of the application are a neutral consideration under s 394(3)(e).
· Fairness between persons No persuasive submissions were made on fairness arising between Mr. Shereen and other persons in a similar position.
I conclude the reasons for the delay under s 394(3)(a) count against an extension of time being granted. As Mr. Shereen took no action to dispute his dismissal, this counts against an extension of time under s 394(3)(c). All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.
Two factors count against an extension of time being granted. The other factors are neutral. On balance, taking into account all the factors under s 394(3), and given the application was 103 days late, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[2]
COMMISSIONER
Appearances:
Mr. Mohammad Shereen, the Applicant, on behalf of himself.
Mr. Michael Opie on behalf of the Respondent.
Hearing details:
28 January 2025
11 Exhibition Street
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] PR784872.
Printed by authority of the Commonwealth Government Printer
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