Mr Anwarul Syed v Jones' Cleaning and Property Services

[2020] FWC 4610

[2020] FWC 4610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Anwarul Syed
v
Jones' Cleaning and Property Services
(U2020/10867)

COMMISSIONER CIRKOVIC MELBOURNE, 31 AUGUST 2020

Application for unfair dismissal remedy – application made out of statutory time frame – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Anwarual Syed (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Jones’ Cleaning and Property Services (Respondent) was terminated with effect from 2 July 2020. The unfair dismissal application was lodged at 11:23pm on 10 August 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (Commission) allows pursuant to s 394(3). The period of 21 days ended at midnight on 23 July 2020. The application was therefore filed 18 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[8] The delay required to be considered in section 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] 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 explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[10] The Applicant cited being “mentally upset” as a reason for the delay in lodging the application. In support of his submission, the Applicant relied on a medical report from Dr Medhat Youssef dated 14 July 2020 (Medical Certificate). The Medical Certificate stated, amongst other things, “In my opinion this person is/has been unfit for work/study from Tuesday, 14 July 2020 to Monday, 14 September 2020 inclusive” (emphasis retained). The Applicant also relies on a “discharge summary” from Monash Health which confirms that the Applicant attended Monash Health on 21 July 2020 for a period of approximately six and a half hours. Both documents noted symptoms, diagnoses and treatments in respect of the Applicant which, for reasons of privacy, need not be repeated in this decision.

[11] The Applicant’s evidence also advanced the following:

•  that he had access to the internet during the period between 2 July 2020 and 2 August 2020;

•  that he contacted the Fair Work Ombudsman (FWO) on or around 4 or 6 July 2020;

•  that he learned from the FWO in or around late July 2020 that while the FWO could assist with his underpayment claim they could not assist with his unfair dismissal claim;

•  that shortly after learning this, he accessed the Commission’s website on his phone and on or around 1, 2, 3 or 4 August 2020 he downloaded documents from the Commission’s website;

•  that his attempts to contact the Commission on its “1800 number” were unsuccessful;

•  that he lodged his application on 10 August 2020;

•  that he was “very upset” in the period following his termination;

•  that he would “sometimes…feel good and sometimes very upset…and many other issues were going with me as well in my mind…this is my sickness”; and

•  that he was not familiar with the “Australian system”.

[12] The Applicant essentially relies on two reasons for the delay in filing his unfair dismissal application. First, the Applicant contends that he had no familiarity with the “Australian system”. In this case, I do not consider this to be an acceptable or reasonable explanation for the delay; ignorance of the time limit or a right to challenge a dismissal is not generally an acceptable explanation for a delay.

[13] Secondly, the Applicant effectively contends that as a result of the significant deterioration in his mental state shortly after his dismissal, he was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.

[14] Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I am not persuaded that in this case the evidence before me supports a finding that there is a credible reason for the delay in this matter.

[15] Firstly, I am not persuaded that the Applicant’s medical evidence supports the conclusion that he was unable to file an unfair dismissal application in time. While I accept that the Applicant may have been ill during some of the period of the delay I do not accept the submission that the medical evidence supports a finding that the impact of the illness on the Applicant was such that he was prevented from lodging his application on time. In coming to my conclusion, I observe that the Applicant was, on his own evidence, able to engage with the FWO, with a view to progressing his underpayment claim.

[16] Further, I note that upon learning from FWO in late July 2020 that the Commission was the appropriate avenue to advance his unfair dismissal claim, the Applicant did not lodge his unfair dismissal claim with the Commission until 10 August 2020

[17] I have taken into consideration that the Applicant was hospitalised and did undergo medical tests on the day of hospitalisation, however there is insufficient evidence before me to conclude that the day in hospital was disruptive enough to provide a credible reason for the whole of the delay.

[18] In addition, I note the statement in the application that “I have submitted a wrong form online on August 04, 2020 by my mobile. I got reply with contact details 1800759566. I kept voice massage and I emailed. But I did not get reply (sic)”. The Commission’s case management system has no record of this occurring and the Applicant produced no evidence in support of the submission. I observe that, even if this did occur, the application would still have been made outside the statutory time frame.

[19] As part of the reason for the delay the Applicant also states that “English my second language (sic)”. This submission was not fully developed however, in any event, having observed the Applicant’s communication skills during the hearing I am satisfied that any language barrier was not sufficiently disruptive to provide a credible reason for the whole of the delay. In that regard, I observe that Applicant’s language skills did not preclude him from prosecuting his claim with the FWO for underpayment of wages.

[20] In these circumstances, I do not consider these matters individually or together, to be an acceptable or reasonable explanation for the delay.

[21] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[22] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[23] The Applicant gave evidence that that he disputed the dismissal by sending an email to the Respondent. This circumstance weighs in favour of the Applicant.

Prejudice to the employer

[24] I cannot identify any prejudice that would accrue to the business if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[25] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, the Applicant said that he was not provided with a reason for his dismissal and noted that he had undertaken high quality work during his employment. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[27] Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3), except the Applicant’s disputing of his dismissal, weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.

[28] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr A. Syed for himself

Mr M. Jones for the Respondent

Hearing details:

25 August 2020 (via telephone)

Printed by authority of the Commonwealth Government Printer

<PR722298>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].