Mr Ehsan Rashidi v Speedx Pty Ltd
[2023] FWC 102
•16 JANUARY 2023
| [2023] FWC 102 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mr Ehsan Rashidi
v
Speedx Pty Ltd
(C2022/6210)
| DEPUTY PRESIDENT BELL | MELBOURNE, 16 JANUARY 2023 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional - application dismissed.
On 8 September 2022, Mr Ehsan Rashidi (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).
On 28 September 2022, Speedx Pty Ltd (Respondent) filed its F8A Response to the general protections application, raising a jurisdictional objection to the Application on the ground that it was made outside the 21-day time limit set out in s.366(1) of the Act.
The matter was listed for conciliation on 19 October 2022 but was unable to be resolved.
Prior to the Commission issuing a certificate under s.368(3) of the Act, it is necessary for the Commission to hear and determine the Respondent’s jurisdictional objection.
Section 366(1) requires an application under s.365 to be made within 21 days after the dismissal took effect. In his application the Applicant states that his dismissal took effect on 29 July 2022, making the application outside the 21-day timeframe. The Commission must therefore determine in the first instance whether further time for lodgement of the application should be granted. The matter has been allocated to me for determination of the extension of time question.
After conferring with the parties, I resolved to conduct the matter by way of a determinative conference. I also granted the Respondent permission to be represented, being satisfied that there was sufficient factual complexity that a practitioner would assist in the more efficient conduct of the matter.
When did the dismissal take effect?
The parties are in agreement that the Applicant was dismissed from his employment on 29 July 2022. The Applicant’s Form F8 describes that date in his application. The Respondent’s response refers to the same date. It is a matter of record that the Applicant’s general protection application was made on 8 September 2022.
On this basis his application should have been filed by 19 August 2022 and was, in the circumstances, approximately 20 days’ late.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW 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
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1] I issued directions to the parties on 3 November 2022, requiring the parties to provide any evidence or submissions regarding the above factors. Each party filed material. The Applicant gave evidence for himself. The Respondent called Ms Divyange Rathore, the HR Supervisor for the Respondent. Each witness was cross-examined.
I set out my consideration of each matter below.
Section 366(2)(a) - Reason for the delay
The Applicant’s Form F8 application states that he began working for the Respondent on 14 June 2022.
As noted above, he was dismissed on 29 July 2022. On that same day, the Applicant lodged an application for unfair dismissal with the Commission.
On 1 August 2022, the Applicant says (and I accept) that he had a telephone conversation with a staff member of the Commission. Following that conversation, the Applicant’s unfair dismissal claim was discontinued. I infer it was discontinued because there was no basis that the Applicant could satisfied the “minimum employment period” for the purposes of s.383 of the Act. The Applicant says, and I accept, that during this conversation he was not advised or told about his capacity to commence a general protections dispute.
What then occurred was that the Applicant undertook inquiries with Legal Aid NSW, further pursued direct correspondence with the Respondent, made a complaint with NSW Fair Trading, subsequent enquiries with the Fair Work Ombudsman and then lodged his current general protections application with the Commission.
In his material, the Applicant set out a chronological summary of these steps, which I extract below:
“29th July--> Termination
29th July--> Lodge unfair dismissal
1st Aug--> Case discontinued
Request lodged between 3-5 of Aug--> Getting advice from NSW legal aid : free
counseling : General Enquiry CABS-202215391 ( Advise on Aug the twelfth 2022)
11 th Aug--> sent the CEO of the company an email.
12th Aug--> answer has received and requires time to answer
23th Aug--> video conference, dispute not resolved.( I asked them what is your settlement offer, they said we are here to explain the situation)
25th Aug --> NSW fair Trading Lodged complaint( deceptive job advertisements, attached)
31th Aug--> NSW Fair Trading answer better to lodge with FWO
Bringing the matter to the commonwealth ombudsman and confirming that NSW fair Trading answer is correct and it will not fall into NSW fair trading jurisdiction.
7th SEP--> FWO Inquiry
9th SEP --> Answer from FWO
9th SEP--> lodged general protection”
In relation to the legal advice sought from NSW Legal Aid, it was not clear what the advice was (and I note the content of that advice would be privileged). I infer that NSW Legal Aid might not have been in a position at the time to provide any detailed advice, given the following submission from the Applicant about that matter where he says:[2]
“…[I have made] efforts made to advance the action including obtaining an expert – getting advice from legal aid NSW, employment legal aid is too time-consuming and
bureaucratic to be an attractive practice option ---and due to the high volume of requests in any organization mentioned in the above time chronology, there was a long queue which made the follow up lengthy in time.”
In relation to the correspondence that ensued with the Respondent, it is not necessary to set it out but (as the chronology above records), it commenced with the Applicant sending an email to the Respondent’s CEO on Thursday, 11 August 2022. It is sufficient to note that it set out a number of the complaints the Applicant had about his dismissal, as well as complaints the Applicant had about the Respondent more generally. The email concluded by stating:
“Please be advised that I want to negotiate about my reputation and other matters.
Feel free to contact me if you would like to negotiate further.”
The CEO responded the following day, albeit stating that he required the opportunity to make further inquiries and obtain legal advice prior to responding. He undertook to “come back to you early next week” to arrange a time to discuss the matters raised.
On 14 August 2022, the Applicant replied to the CEO’s email dated 12 August 2022. According to the Applicant, the email from the CEO was (among other matters) a “declaration or avowal of Speedx’s staff involvement of their own misconduct act.” The email continued at some length to considerable effect. I have read the CEO’s email and consider it was nothing of the sort.
Notwithstanding the Applicant’s email sent on 14 August 2022, on 16 August 2022 the CEO proposed a meeting time (which was scheduled for 18 August 2022).
On 17 August 2022, the Applicant sent a further email. The email raised a number of matters and allegations (including, by way of example, a defamation complaint). In relation to the meeting scheduled for 18 August 2022, he wrote:
“I do respect that you are a busy man as CEO of SpeeDX, and I respect and greatly appreciate the time you offered but I couldn't attend Thursday's meeting because it is short notice & I will not be available on that day. Please set another time, which could be suitable to both sides of the dispute.”
In his oral evidence, the Applicant indicated, after some reluctance, that the reason he was unavailable that day was because he was assisting his wife with her work. The meeting was rescheduled to 23 August 2022.
In relation to NSW Fair Trading, the evidence indicates that the Applicant was seeking advice – or to pursue a potential claim – regarding alleged misleading conduct occurring prior to employment in relation to the training said to be provided in the role. It appears that those enquiries reached a dead end. The evidence also shows that NSW Fair Trading (although the Applicant also refers to the Australian Competition & Consumer Commission) recommended on 31 August 2022 that the Applicant speak to the Fair Work Ombudsman.
On 7 September 2022, as recorded in his chronology, the Applicant contacted the Fair Work Ombudsman by telephone. It appears that through this conversation that the Applicant became aware of the capacity to file a general protections claim.
On 9 September 2022, the Applicant lodged his claim.
The Applicant states that the reason for his delay in filing his general protections application within the 21 day time period was because he filed in the “wrong jurisdiction”. For example, in his submissions he states:
“I took action to contest my termination of employment almost immediately but in the wrong jurisdiction. Had the application been lodged in the correct jurisdiction it would have been well within the time allowed by the Fair Work Act 2009.”
By “wrong jurisdiction”, I understand the Applicant to be saying that he made an unfair dismissal application rather than a general protections claim. That said, I consider that commencing an unfair dismissal application at the time is what the Applicant intended to do at the time (albeit he discontinued the unfair dismissal claim promptly).
By s.725 of the Act, a person “must not” make an application or complaint of a kind regarding a dismissal described in any one of ss.726 to 732 in relation to the dismissal if any of those other sections apply. The statutory scheme means an “employee is faced with an election”[3] in choosing which action to pursue.
Section 727 addresses a “general protections FWC application”, which is an application under s.365 of the Act. By s.725, a person cannot make a “general protections FWC application” if any one of the other sections in ss.726 – 732 applied. Section 729 is titled “Unfair dismissal applications”. As the heading to s.729 suggests, it applies to an unfair dismissal application, although only where the unfair dismissal application has not been withdrawn, failed for jurisdiction, for failed because the Commission was satisfied the dismissal was a case of genuine redundancy.
As the Applicant’s unfair dismissal application was withdrawn on 1 August 2022, he could not make his general protections application before that time but could do so the moment it was withdrawn (albeit subject to the 21-day requirement in s.366). Regardless of the mandatory effect that s.725 had on the Applicant’s ability to pursue an unfair dismissal action, that effect was only temporary. The above explanation from the Applicant does not fully explain why it took until 9 September 2022 for the Applicant to make his general protections claim.
I find that the reason for the Applicant’s delay in commencing his general protections application was for various factors. They were that: the Applicant was firstly seeking legal advice as to his options; he was seeking to engage directly with the company about his complaints; he was pursuing different potential relief through ‘fair trading’ claims; and he was unaware (or did not appreciate) that he could make a specific general protections claim, at least until the Fair Work Ombudsman told him about that option.
Section 366(2)(b) - action was taken by the Applicant to dispute the dismissal
Where an Applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[4]
The Applicant promptly commenced an unfair dismissal action. While it is not clear whether the Respondent was notified of that action, I am satisfied that at least through his correspondence directly with the Respondent on 11 August 2022, he had taken action to dispute his dismissal.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
Section 366(2)(d) - the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)”[5].
In the absence of a hearing of the evidence, 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.
Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position
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?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[6] 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.[7]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[9] I would make the same observation as to ignorance regarding the cause of action itself.
The delay in the present case is significant – around 20 days. The reasons for delay are in part ignorance about his capacity to make a general protections claim, coupled with seeking legal advice as to his options, engaging directly with the company about his complaints, and pursuing his ‘fair trading’ claims. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances. The Applicant suggests that he should have been positively alerted to the option of making a general protections claim during a conversation he had with the Commission shortly prior to discontinuing his unfair dismissal claim. The function of the Commission is not to provide legal advice or strategy. The Applicant’s position at the point when he had discontinued his unfair dismissal claim was largely no different to the position that many self-represented parties are in following a dismissal. While I acknowledge that it might be daunting for such persons to know what decisions they should make, that scenario is not uncommon (and it is not of itself “exceptional”).
The Applicant took steps to challenge his dismissal prior to his application. It is a factor that I consider assists him.
I am unable to form a concluded view about the merits of the application. The factors regarding the merits of the application and the fairness between the Applicant and other persons in a similar position neither add nor detract from my consideration.
When having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, even if I were to make a more beneficial assessment on the merits of the Applicant’s claim.
Conclusion
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. An Order[10] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
E Rashidi on his own behalf
S Freeman of Acuity Legal Consulting Pty Ltd for the Respondent
Hearing details:
2022.
Melbourne (by video and Telephone):
December 15.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[2] Court Book, page 32.
[3] Cook v Australian Postal Corporation [2018] FCA 81 at [76].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[6] Ibid [13].
[7] Ibid.
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[10] PR749663.
Printed by authority of the Commonwealth Government Printer
<PR749662>
0
4
0