Mr Arafath Ayubkhan v Elliot Controls - [2021] FWC 6452

[2021] FWC 6452

FAIR WORK COMMISSION

DECISION

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

Mr Arafath Ayubkhan
v
Elliot Controls
(C2021/6203)

DEPUTY PRESIDENT CROSS

SYDNEY, 24 NOVEMBER 2021

Application to deal with contraventions involving dismissal - application filed out of time – circumstances not exceptional – application dismissed.

[1] Mr Arafath Ayubkhan (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Elliot Airconditioning Controls Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

[2] The Respondent has objected to the Application on the ground that the Application is out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

[3] Section 366(1) of the Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

[4] It is a matter of record that the Application was made on 8 September 2021.

When did the dismissal take effect?

[5] It is not in dispute, and I so find, that the dismissal took effect on 27 July 2021

Was the application made within 21 days after the dismissal took effect?

[6] As the Full Bench of the Commission has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 1

[7] As I found above, the dismissal took effect on 27 July 2021. The final day of the 21 day period was therefore 17 August 2021, and ended at midnight on that day. The Application was made on 8 September 2021. The application was made 22 days late.

[8] The Application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

[9] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the Applicant and other persons in a similar position.

[10] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 2 I set out my consideration of each matter below.

Reason for the delay

[11] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 August 2021. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[12] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4

[13] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay. 5

Submissions and evidence

[14] The Applicant submitted that the delay was for the following reasons:

• He was “waiting for advice from the government department”; and

• He is without a proper residential facility.

[15] In relation to the reasons for the delay, the Respondent submitted that the Applicant’s explanation, namely that he was waiting for a response to his email from a government department, is not an acceptable reason for the delay. The Applicant failed to follow up his communication during the entire lodgement period, and at all times during the lodgement period, information was freely available to the Applicant on the Fair Work Commission’s website.

[16] The Applicant stated that he sent an email to the “government department” on 23 July 2021 (the 23 July Email). The 23 July Email was in fact sent to almost 200 email addresses whose identity would appear to include various Federal and State Government members and departments, and numerous news outlets and journalists.

[17] The Applicant received a response to the 23 July Email (the Response), which was as follows:

“Dear Mr Ayubkhan

Thank you for your email of 23 July 2021 to the Hon Christian Porter MP, Minister for Industry, Science and Technology regarding allegations of discrimination leading to the termination of your employment. Your correspondence has been referred to the Attorney-General and Minister for Industrial Relations, Senator the Hon Michaelia Cash as the matters you raise fall within her portfolio responsibilities. The Minister has requested that the Attorney-General’s Department respond to you on her behalf.

I note your concern that you were dismissed and that you feel you were discriminated against in the workplace. The general protections provisions of the Fair Work Act 2009 prohibit an employer from taking adverse action against an employee for discriminatory reasons, including because of their race. This is the case unless the action is taken because of the ‘inherent requirements of the particular position concerned’ or is not unlawful under anti discrimination laws. Adverse action includes dismissing a person or treating them differently to others.

If you wish to find out more about the general protection provisions, and the actions you may take if you feel that you have been discriminated against, you can do so through the Fair Work Commission website at: trust this information is of assistance.

Yours sincerely”

Findings

[18] It is readily apparent from the Response that:

(a) The Applicant sent the 23 July email, the day after he was dismissed by letter dated 22 July 2021. That letter said the employment would end on 27 July 2021;

(b) The Applicant took no action to file the Application for 47 days after the email of 23 July 2021, was sent; and

[19] It is clear that the Applicant did not diligently pursue his matter. While mere ignorance of the statutory time limit is not an exceptional circumstance, 6 the Applicant was at least aware that the 21 day limitation period applied to unfair dismissal applications. Prior to sending the 23 July Email he had visited the Commission’s website and became aware he did not meet the minimum employment period allowing for him to pursue an unfair dismissal claim.

[20] I also do not consider that the Applicant’s residential status could explain the delay. The Applicant was able to write the 23 July Email, and upon receiving the Response he was able to act promptly in filing the Application. His residential status did not hinder his pursuit of his matter.

[21] Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for any of the period of the delay, and that is a matter that weighs in favour of the Respondent in this matter.

What action was taken by the Applicant to dispute the dismissal?

[22] The Applicant did take action to dispute his dismissal prior to making the Application because he sent the 23 July Email.

[23] This consideration, however, enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. While the Respondent was aware of the 23 July Email, I do not find that the Applicant took any action to dispute the dismissal after it became effective on 27 July 2021. I consider this factor is a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[24] The Respondent submits that the delay gives rise to a general presumption of prejudice to the Respondent. The Applicant did not file any submissions in reply and did not put the Respondent’s submission in issue.

[25] Without more specificity, however, I am unable to accept that the Respondent will suffer actual prejudice. I consider that this is a neutral consideration.

What are the merits of the Application?

[26] 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 that the Commission is required to take into account in assessing whether there are exceptional circumstances.

[27] Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).” 7

[28] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. I consider that this is a neutral consideration.

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

[29] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[30] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

[31] 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. 8 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.9

[32] It is clear that the factor that has been accorded significant weight in this matter is the absence of an acceptable reason for the delay, and that factor weighs in the Respondent’s favour.

[33] Having regard to all of the matters listed at s.366(2) of the Act, I am satisfied that there are not exceptional circumstances.

Conclusion

[34] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

3 Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

6 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

7 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

8 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

9 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].