Mr Amir Ansari v Lid Star Trust T/A Is Top Electrics

[2019] FWC 1928

[2019] FWC 1928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Amir Ansari
v
Lid Star Trust T/A Is Top Electrics
(C2018/4627)

DEPUTY PRESIDENT LAKE BRISBANE, 3 MAY 2019

Application to deal with contraventions involving dismissal – application made out of time – request for an extension of time

INTRODUCTION

[1] Mr Amir Ansari (the Applicant) lodged an Application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed by Lid Star Trust T/A Is Top Electrics (the Respondent) in contravention of the Act’s general protections provisions.

[2] Section 366(1) of the Act provides that an Application made pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal.

[3] The dismissal date is in dispute. The Applicant stated in his Application that his dismissal took effect on 31 July 2018. However, the Respondent disputed this stating the Applicant was dismissed on 25 July 2018. In his formal submissions the Applicant corrected this and confirmed that the relevant date for the dismissal was 24 July 2018. As the Application was lodged on 17 August 2018 the Application was filed 3 days outside of the statutory 21 day period.

[4] Therefore it must be determined whether exceptional circumstances existed for the Fair Work Commission (FWC) to allow a further period for filingunder section 366(2) of the Act.

BACKGROUND

[5] The Applicant commenced employment with the Respondent in September of 2017 as an apprentice electrician. The Applicant stated that while he is a qualified electrician in Iran he is required to complete an apprenticeship in Australia to gain the “A grade certification”.    1

[6] For the week ending 20 July 2018 the Applicant noticed his weekly pay had been reduced as a result of him being sent home early for one shift. He was paid for 7.5 hours of work for that day. However, the Applicant disagreed with this amount as he believed he was entitled to payment for a full 8 hours due to the fact that he was not a casual employee.

[7] The Applicant stated he raised his concerns with Mr Igor Vortman, the owner of the Respondent’s Company. The Applicant also made further complaints in response to sustaining a workplace injury while working on the roof of a building on 24 July 2018. The Applicant brought the injury to Mr Vortman’s attention and asked whether another worker could relieve his tasks. The Applicant stated that Mr Vortman denied his request and directed that he get back to work.

[8] Following these events, the Applicant stated he made the following complaints:

•  That he was being paid under the Award rate;

•  That he was treated poorly while injured;

•  That he was not being paid for his travel time and petrol; and

•  That he was not being paid superannuation.

[9] In his Application the Applicant submitted that further to these complaints, Mr Vortman stated, “if you say more thing [sic], I will fire you”. 2 The Applicant made further complaints and was directed by Mr Vortman to leave the work site.

[10] The Applicant was advised later that day by Mr Vortman that his training contract had been cancelled.

[11] The Respondent denied, however, terminating the Applicant due to the complaints raised. The Respondent instead submitted that the Applicant was dismissed for “violent, threatening and bullying behaviour” towards Mr Vortman and other contractors working on the same site.

[12] There was a dispute between the parties regarding the relevant date of the dismissal. While the Applicant’s Application provided that the dismissal took effect on 31 July 2018 he later corrected this to say that the relevant date was 24 July 2018. The Respondent submitted in its material that the termination either took effect on 25 July 2018 or on 27 July 2018. It is relevant to note here that as the Applicant conceded the earlier date the out of time issue will be considered on the basis that the termination took effect on 24 July 2018.

[13] The matter was listed for a conciliation conference before a FWC conciliator on 11 December 2018. While not raised by the Respondent in its F8A Employer Response or at the conciliation of this matter, the Conciliator Report subsequent to the conciliation conference indicated that the Applicant and his representative conceded the question about whether the Application was filed within time.

[14] After the conciliation conference the Respondent sought legal advice. The Respondent’s representative advised the FWC on 11 January 2019 that further settlement discussions between the parties had been unsuccessful. The Respondent then sought that the matter be referred to a Member to determine the out of time question.

[15] Directions requiring the filing of materials in the Jurisdictional Hearing for consideration of the out of time matter were issued to the parties on 20 February 2019.

[16] By no later than 4:00pm on 27 February 2019 the Applicant was directed to file in the FWC and serve on the Respondent a statement setting out the basis with which he sought a further period to make his application. By no later than 4:00pm on 6 March 2019 the Respondent was directed to file in the FWC and serve on the Applicant a statement as to why the Applicant should not be granted a further period in which to make his application.

[17] The Applicant filed his materials on 27 February 2019; however, the Respondent failed to comply with the Directions of 20 February 2019. Further Directions were issued 14 March 2019 directing that the Respondent file its materials by 1:00pm on 14 March 2019. The Respondent filed its material at 9:52am on 14 March 2019.

[18] The Jurisdictional Hearing proceeded by telephone at 2:00pm on 14 March 2019.

[19] The Applicant was represented at the Jurisdictional Hearing by Mr Scott Riches and Ms Chelsea Hill of the ETU. The Respondent was represented by Mr Lirim Murati, a lawyer. Mr Murati was given leave to appear for the Respondent.

[20] In determining whether the FWC is satisfied that there are exceptional circumstances to allow a further period of time it refers to the relevant statutory provisions and to matters of precedent before the courts and the FWC to determine whether there are exceptional circumstances in the Applicant’s case.

RELEVANT STATUTORY PROVISIONS

[21] Section 366(1) of the Act provides that an application under section 365 (a general protections 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 (2).”

[22] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

“(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.”

[23] The Full Bench of the then Fair Work Australia in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

“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…

…

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.” 3

[24] The test of exceptional circumstances establishes a ‘high hurdle’ for an applicant to overcome for an extension to be granted. 4

[25] A decision to extend time under section 366(2) involves the exercise of discretion by the FWC. 5

[26] Whether exceptional circumstances exist requires consideration of all the relevant circumstances. 6 I will consider each of these matters in turn.

CONSIDERATION

s.366(2)(a) – The reason for the delay

[27] Contrary to what was provided in the Application, the Applicant’s submissions for the Jurisdictional Hearing stated that he was verbally dismissed on 24 July 2018. He was therefore required to lodge his Application on or by 14 August 2018.

[28] The Applicant conceded in his submissions that the Application was filed outside the statutory time frame. He stated that he was dismissed on 24 July 2018 as a result of making complaints regarding his pay and the injury he sustained at work among other things. As to the delay in filing the Applicant submitted that it was the result of representative error.

[29] The Applicant submitted that representative error is a well-recognised category of exceptional circumstance. 7 Specifically, the Applicant referred to the decision in McConnell v A & PM Fornataro T/A Tony's Plumbing Service8 where the Commission held:

“The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”

[30] It was the Applicant’s submission that he took steps immediately after being notified of his dismissal to seek redress and contacted a number of organisations seeking assistance. 9

[31] The Applicant stated he contacted Ms Abbey Kendall of the ETU on 31 July 2018 and arranged a meeting on 1 August 2018 to discuss his matter. 10 He was advised on 1 August 2018 by Ms Kendall that she would be able to lodge a general protections claim for him.11

[32] Ms Kendall provided the Applicant a draft copy of the Application on 16 August 2018. On viewing the draft application on 17 August 2018 the Applicant submitted that he advised Ms Kendall the termination date provided in the Application was incorrect. 12

[33] The Application was filed later that same day.

[34] Ms Kendall provided a statutory declaration in support of the Applicant’s statement seeking a further period for filing.

[35] Ms Kendall’s evidence was that Mr Matt Kunkle, Director of the Migrant Worker’s Centre, sent correspondence on 27 July 2018 referring the Applicant’s matter to the ETU. In this correspondence it stated that the Applicant’s dismissal took effect on 24 August 2018. Ms Kendall stated that as this was a date in the future she endeavoured to correct this date with the Applicant.

[36] Ms Kendall in her evidence stated that at the meeting of 1 August 2018 the Applicant was accompanied by an interpreter and that much of the meeting was spent with the translator translating the conversation between herself and the Applicant. She further gave evidence that subsequent to this meeting and based on the information gathered she wrote to the Applicant that the “filing deadline was 21 August 2018”. It was her understanding from the meeting that the Applicant was dismissed on 31 July 2018. 13

[37] Ms Kendall stated that she provided the draft Application on 16 August 2018 which stated that the dismissal had taken effect on 31 July 2018. She stated that the Applicant wrote to her on 17 August 2018 informing that he was content with the Applicantion and hence she filed the Application with the FWC on that date, believing she had filed the application “early and certainly within the 21 day time frame”. 14

[38] Her evidence was that shortly after completing lodgment of the Application the Applicant called her to advise the termination date was wrong and that the termination had taken effect a week earlier than stated in the Application. She stated that she realised the Applicant was correct and that the Application had therefore been filed three (3) days out of time. 15 Ms Kendall stated:

“The late filing was entirely my mistake. I misunderstood the termination date. My first meeting with the applicant and Ms Poureisa was long, conducted in 2 languages and very detailed.

I have misunderstood the date of termination due to the translation process in the meeting and in error relied on my understanding up to and including when I drafted the application.

I take full responsibility for the error…

The applicant was always quick to respond to my correspondence and at all times was an active and engaged applicant”. 16

[39] In regard to the Applicant relying on representative error for the period of the delay the Respondent submitted that as Ms Kendall had received correspondence from the Migrant Worker’s Centre on 27 July 2018, “it ought to have been clear on the date of receipt of the email, that termination had occurred either on 27 July 2018 or a date prior to 27 July 2018”. 17

[40] Further, the Respondent noted that Ms Poureisa is stated to have translated the meeting of 1 August 2018 between the Applicant and Ms Kendall. The Respondent submitted in this regard that Ms Poureisa has not provided a statement detailing what was discussed at that meeting and therefore it is open to the Commission “to draw an adverse inference”. 18 The Respondent also submitted that the Applicant’s Witness Statement in these proceedings was provided in English and does not appear to have been translated, and further that the Applicant indicated in his Application that he does not require an interpreter.19

[41] The prima facie position in general protections claims, as well as in unfair dismissal matters, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend. 20

[42] The period of the delay needs to be considered in its entirety in determining whether there was a credible reason for the delay. 21

[43] In regard to representative error the established case law states there is a clear distinction between a delay caused by a representative where the employee is blameless and when the employee has contributed to the delay. 22 The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.23 Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.24

[44] While I note the Respondent’s evidence that Ms Kendall may have been put on notice that the termination took effect either on 27 July 2018, or an early date, as a result of the 27 July 2018 email, I accept Ms Kendall’s evidence that she endeavoured to confirm the date of termination with the Applicant and that as a result of the lengthy 1 August 2018 meeting she held an incorrect belief that the date of the termination was 31 July 2018. I accept that Ms Kendall acted on her incorrect belief. I also accept Ms Kendall’s evidence in support of the Applicant that he was an “engaged applicant” who attempted to act promptly in filing his Application.

[45] On consideration of the evidence before the FWC, and having regard to the short period of delay, I determine that this criterion weighs in favour of granting an extension for filing of the Application.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[46] Action taken by an applicant to contest the termination, other than by virtue of the Application will be relevant and may weight in favour of granting an extension of time. 25

[47] The Applicant stated that on the afternoon of his termination he contacted the Fair Work Ombudsman, the Migrant Worker Centre, the Australian Taxation Office and Worksafe to seek advice. 26 Further, he submitted he instructed his representative to contest the dismissal in the FWC as soon as he was aware the he was able to pursue the matter.27

[48] The Respondent submitted at hearing that it was not aware that the Applicant was contesting its dismissal.

[49] I find that the Applicant acted promptly following his dismissal to seek advice and assistance in filing his Application. This criterion weighs in favour of granting an extension.

s.366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[50] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 28

[51] The delay in filing was three (3) days.

[52] The Applicant submitted that the lateness of the application would not have caused any disadvantage or unfairness for the Respondent 29 in light of the limited duration of the delay.30

[53] The Respondent did not provide specific submissions on this criterion save that it would incur costs to defend itself in the matter which it would have otherwise had to do if the Application was filed in time.

[54] In relation to this matter, there is not sufficient evidence before me that there would be undue prejudice to the Respondent should I be of the mind to allow an extension of time.

s.366(2)(d) – The merits of the application

[55] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[56] The Applicant submitted that his employment was terminated as he exercised his workplace right to make a complaint about his working conditions. He stated he was warned by the Respondent that if he made one more complaint he would be dismissed and that the Respondent did dismiss him for such. 31 Further, he submitted he is a vulnerable worker who speaks limited English.32

[57] The Applicant noted, however, that the Respondent’s reason provided for the termination was the Applicant’s “violent, threatening and bullying behaviour”. 33

[58] The Respondent submitted that the Applicant’s substantive claim lacks merit, given the inconsistency caused by incorrect dates relied on in the Application regarding the relevant events leading to the termination and the date of termination itself. 34 The Respondent stated that the evidence provided in relation to the jurisdictional matter contradicts the allegations described in the Form F8 Application.35

[59] On balance therefore and without the possibility at this stage of closer examination as to the exact allegations of the Applicant and the response of the Respondent to those allegations, this is considered a neutral factor.

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

[60] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 36

[61] The Applicant submitted that there are no other employees of the Respondent that were in a similar situation. 37

[62] The Respondent did not provide submissions on this criterion.

[63] This matter is considered to be neutral.

CONCLUSION

[64] On the evidence before the Commission, and having regard to the established case law, I accept that the late filing was the result of representative error, and that therefore “exceptional circumstances” are established as to favour an extension of time.

[65] Pursuant to section 366(2) of the Act, the extension of time is granted. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR706153>

 1   Applicant’s Form F8-General protections application involving dismissal at question 3.1.

 2   Ibid.

 3   Nulty v Blue Star Group[2011] FWAFB 975

 4   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 5   Halls v McCardle and Ors [2014] FCCA 316.

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [38].

 7   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35].

 8 (2011) 202 IR 59 [35].

 9 Applicant’s Extension of Time Submissions at [12].

 10   Statement of Mr Amir Ansari at [11]-[12].

 11 Ibid at [13].

 12   Ibid at [14]-[15].

 13   Statutory Declaration of Ms Abbey Kendall dated 26 February 2019 at [7]-[8].

 14 Ibid at [13].

 15 Ibid at [14].

 16   Ibid at [15]-[18].

 17 Respondent’s Submissions to the Question of Whether Time Ought to be Extended dated 14 March 2019 at [3].

 18 Ibid at [6].

 19   Ibid.

 20   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299-300].

 21   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 403, [408-409].

 22   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].

 23   Ibid.

 24   Ibid.

 25   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

 26 Applicant’s Outline of Argument: Objections, at question 1(e); Applicant’s Extension of Time Submissions at [16].

 27 Applicant’s Extension of Time Submissions at [16]; Statement of Mr Amir Ansari at [13].

 28   Ibid.

 29   Applicant’s Outline of Argument: Objections, at question 1(f).

 30 Applicant’s Extension of Time Submissions at [18].

 31   Applicant’s Outline of Argument: Objections, at question 1(h).

 32 Applicant’s Extension of Time Submissions at [20].

 33   Applicant’s Outline of Argument: Objections, at question 1(g).

 34   Respondent’s Submissions to the Question of Whether Time Ought to be Extended dated 14 March 2019 at [4], [5], [7].

 35 Ibid at [5].

 36   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

 37   Applicant’s Outline of Argument: Objections, at question 1(i).