Mr Dahi Bakour v Fresh Poultry Pty Ltd
[2010] FWA 1436
•24 FEBRUARY 2010
[2010] FWA 1436 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Fresh Poultry Pty Ltd
(U2009/12962)
COMMISSIONER CARGILL | SYDNEY, 24 FEBRUARY 2010 |
Extension of time.
[1] This decision arises from an application by Mr D Bakour (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged dismissal by Fresh Poultry Pty Ltd (the respondent). The alleged dismissal occurred on 4 September 2009. The application was lodged with Fair Work Australia (FWA) on 13 October 2009 which is outside the statutory time limit for such applications.
[2] The respondent objects to the extension of time being granted.
[3] The substantive matter was dealt with by an FWA Conciliator but did not settle. It then came before me on 5 February 2010 for the purpose of determining the extension of time issue. An adjournment was granted at the request of the applicant’s representative for the purpose of providing additional material relevant to that issue. The matter was then heard on 19 February 2010.
[4] The applicant was represented by Mr Milanovic of counsel who appeared by permission. The respondent was represented by Mr Abdulkhalek, its General Manager. The applicant was the only witness in the matter. His witness statement was marked Exhibit Applicant 1.
FACTS AND EVIDENCE
[5] The applicant was employed by the respondent for a period of approximately seven years. There is a dispute between the parties as to whether the applicant resigned or was dismissed, however it is agreed that, whatever the case, the severing of the employment relationship took place on 4 September 2009.
[6] The applicant’s evidence is that as a result of the alleged dismissal he was upset, depressed and frustrated. Centrelink referred him to Max Employment (Max) for assistance in finding employment. He attended that office on 7 September 2009.
[7] A letter dated 15 January 2010 from an Employment Consultant with Max has been provided as Annexure B to Exhibit Applicant 1. In the letter the Employment Consultant expresses the view that the applicant’s answers to questions “deemed” him to be “depressed, frustrated and angry”. The Consultant notes that the applicant was not happy and “just wanted to shut himself away”. It is also noted that the applicant was unaware of his rights. The Consultant directed the applicant to the “Department of Fair Trading and Industrial Relations”. The Consultant expresses the belief that the applicant “was not in the right frame of mind to pursue the matter at the time”.
[8] On 16 September 2009 a new company was registered, Fresh Poultry 2 U Pty Ltd. An extract of details of the registration from the Australian Securities and Investment Commission is Exhibit Respondent 1. The applicant’s evidence is that this registration was undertaken by his wife and that he received no legal advice in relation to it until some time in November 2009 when he received correspondence from the respondent’s solicitors alleging a breach of the respondent’s intellectual property.
[9] On 22 September 2009 the applicant lodged a complaint with the Fair Work Ombudsman. A letter of receipt of that complaint is Annexure C to Exhibit Applicant 1. The letter is dated 24 September 2009. In that letter there is a section headed “Important notice regarding termination”. Information is set out about both unlawful termination and unfair dismissal complaints. The timeframe for lodging such complaints is highlighted in bold. Telephone and internet contact details for FWA are provided.
[10] The applicant’s unfair dismissal claim was lodged with FWA on 13 October 2009. That is 25 days outside the statutory time limit. The claim was lodged by facsimile.
[11] The applicant attended his doctor on 11 November 2009 for “pain and depression”. A medical certificate from that doctor dated 13 February 2010 is Annexure G to Exhibit Applicant 1. It certifies that the applicant was suffering from “1) Back pains 2) Depression. He was seen in this surgery on 11/11/09”. The applicant’s evidence is that he first saw a doctor about his condition about one and a half months after the alleged termination. There is no medical certificate other than Annexure G. The applicant’s evidence is that he received medication but did not take it as he wished to go overseas and forget about things.
[12] The applicant has six dependants, his wife and five children. His evidence is that he does not have a proper command of English. This was reflected in his evidence. The applicant’s evidence is that he relies on his wife to assist him. His evidence is that his wife speaks and understands English very well.
[13] The applicant’s evidence is that he was not aware of his complete rights and entitlements at the time of the alleged termination. He was suffering from depression and anxiety. The applicant’s evidence is that he is still depressed.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[14] A written outline of submissions was provided. Mr Milanovic also made oral submissions.
[15] It is submitted that the reasons for the delay in lodgement were the applicant’s limited command of English, his medical condition and his lack of awareness of his rights. The applicant’s evidence as to his depression is supported by the letter from the Consultant at Max and the medical certificate.
[16] It is submitted that, once the applicant became aware of his rights, he lodged his complaint with the Fair Work Ombudsman. Upon further advice from that organisation he then lodged this claim. Mr Milanovic submitted that the applicant had clearly taken action to dispute his dismissal.
[17] Mr Milanovic submitted that the respondent would not be prejudiced if the extension of time was granted. It had already provided ample paperwork in relation to the claim with the Ombudsman’s office and a large number of statutory declarations in this matter. As a consequence the respondent would not be disadvantaged in obtaining evidence in its case.
[18] Mr Milanovic submitted that the merits of the case were live issues. He submitted that the applicant was a credible witness who had clearly volunteered answers including concessions on factual issues.
[19] Mr Milanovic submitted that the applicant was in a position of disadvantage compared to others whose employment had been terminated. He had little comprehension of English and had been in a weakened bargaining position throughout his employment. The applicant had not been aware of his rights until the consultant at Max had provided him with some direction.
SUBMISSIONS BY THE RESPONDENT
[20] Mr Abdulkhalek submitted that the medical certificate was not evidence that the applicant was being treated for depression only that he had attended the doctor that day.
[21] He submitted that the applicant clearly knew what was happening with the registration of the company.
[22] Mr Abdulkhalek noted that there were delays between the applicant receiving advice from Max and lodging the complaint with the Ombudsman and then again before lodging this claim.
[23] Mr Abdulkhalek submitted that the applicant was not a credible witness. This was reflected by the fact that he was able to run a business even though he says he is depressed. He noted that the applicant’s wife is fluent in English.
[24] Mr Abdulkhalek submitted that the respondent would be prejudiced if the extension of time was granted.
CONCLUSIONS
[25] Section 394(2) provides that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect or within such further period as FWA allows under subsection (3). That subsection is in the following terms:
“FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[26] In this matter three factors are relied on as reasons for the delay: the applicant’s limited command of English; his medical condition; and his lack of awareness of his rights. I accept that the applicant has limited facility with English. That much was clear from my observations of him in the witness box. I note however that the evidence is that his wife is fluent in English and that she was the one who attended to the registration of their company as well as filling out and lodging the complaint with the Ombudsman and this unfair dismissal claim. In my view there is nothing exceptional in the applicant’s circumstances in this regard.
[27] As to the applicant’s medical condition I note the options and observations of the consultant at Max. There is nothing to suggest that the Consultant holds medical qualifications. I accept that the applicant attended his medical practitioner sometime about a month and a half after the alleged dismissal. I note that no medical certificate has been produced to verify that visit although a later attendance has been verified. If it was simply that it was a different doctor within the Medical Centre who was seen on that day surely some verification could have been provided. Nevertheless I am prepared to accept that the applicant was depressed.
[28] I am also prepared to accept that the applicant was unaware of his rights however, in this, he is no different to many other persons in his position.
[29] I note that no explanation has been provided as to why there was a delay of more than two weeks between the date of the letter from the Ombudsman’s office alerting the applicant to the timeframe for making an unfair dismissal claim and the actual lodgement. Even if the applicant’s depression is accepted as attributing to the earlier period of delay it does not account for this further delay when he and his wife were on notice that he was already out of time and should take prompt action.
[30] The applicant became aware of the alleged dismissal on the day it took effect.
[31] Although strictly speaking the applicant did not take other action to dispute the alleged dismissal he clearly took steps to contest surrounding issues by making his complaint to the Ombudsman.
[32] I accept that there will be some prejudice to the respondent although I note that much relevant material has already been prepared in support of its case.
[33] There is insufficient material before me on which I could form any concluded view about the merits of the applicant’s claim. I note that he will have to establish that there has been a dismissal. I am prepared to accept for present purposes that the claim is not without merit.
[34] I note the factors put forward on behalf of the applicant as to fairness between himself and others in a similar position.
[35] After having taken into account the factors set out in section 394(3) and the evidence I am not satisfied that there are exceptional circumstances such that I should extend the period for lodgement of this claim.
[36] The application is dismissed.
COMMISSIONER
Appearances:
S. Milanovic of Counsel, for the applicant
B. Abdulkhalek for the respondent
Hearing details:
Sydney.
2010
February 5, 19.
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