Mr George Nasr v Sydney Water Corporation

[2020] FWC 4591

[2020] FWC 4591

FAIR WORK COMMISSION

EX-TEMPORE DECISION

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

Mr George Nasr
v
Sydney Water Corporation
(U2020/9643)

DEPUTY PRESIDENT BULL SYDNEY, 31 AUGUST 2020

Application for an unfair dismissal remedy – application made outside the prescribed 21 days – whether exceptional circumstances – No finding of exceptional circumstances, no grounds to extend time– application dismissed.

[1] This matter was heard before me on 24 August 2020, and later on the same day I delivered my decision on transcript. 1 As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity.2

[2] In this application, Mr George Nasr has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application was lodged on 14 July 2020.

[3] Mr Nasr states that he commenced employment with Sydney Water Corporation in December 2015, although the employer's response (Form F3) states that the applicant commenced as a contractor in 2015 and as an employee in December 2016. The employment confirmation letter indicates that the applicant was initially employed in the role of Project Manager, Program and Asset Finance.

[4] Mr Nasr seeks compensation as the remedy to his application.

Application filed outside the statutory timeframe

[5] The Act requires an unfair dismissal application to be filed within 21 days of a dismissal taking effect and sub-s.394(2) states as follows:

“Application for unfair dismissal remedy

[…]

(2) The application must be made:

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

(b) within such further period as the Fair Work Commission allows under subsection (3).”

[6] In calculating the 21-day period from the day of the dismissal, 19 June 2020, the applicant had until 10 July 2020 in which to file his application, which, unfortunately, was not filed until 14 July 2020 and, therefore, some four days outside the prescribed 21-day period.

[7] As stated in quoting from sub-s.394(2) of the Act, the Commission may consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[8] The applicant has made an application for the Commission to extend the time for filing the application and, in addition to his application, Mr Nasr, through his legal representatives, has forwarded to the Commission emails dated 29 July and 31 July elaborating on his reasons for seeking an extension of time in which to file his application.

[9] The employer, Sydney Water Corporation, opposes the application and has filed a Form F3 response which contains an attachment setting out its reasons for opposing the application.

[10] Mr Nasr was represented by Ms Lovelock, a solicitor, who sought leave to represent Mr Nasr, which was not opposed by the employer, who was itself represented by their Industrial Relations Manager, Ms Mifsud. Leave was granted for Ms Lovelock to appear pursuant to sub-s.596(2)(a) of the Act.

Ability to extend time for filing

[11] Subsection 394(3) of the Act sets out the circumstances that provide for the Commission to grant an extension of time for an applicant to file their unfair dismissal claim. Subsection 394(3) of the Act is in the following terms:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

(My underline)

[12] Each of these matters needs to be taken into consideration in assessing whether there are exceptional circumstances. 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.

[13] The individual matters might not, when viewed in isolation, be considered exceptional, so it is necessary also to consider the matters collectively and to ask whether, when taken together, the matters show exceptional circumstances.

[14] A Full Bench of the Commission in Lombardo v Commonwealth of Australia 3 described the Commission's decision-making process under sub-s.394(3) of the Act in the following manner:

“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.”

[15] Further, the meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 4 (Nulty) where the Full Bench stated:

“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. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[16] As can be seen, 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 or unprecedented, nor do they need to be very rare. The Commission must be satisfied that, taking into account the relevant considerations, there are exceptional circumstances and, if so, whether to exercise the discretion it has to extend the time for filing.

Reason for delay

[17] In considering these matters, I first address the reasons for the delay.

[18] In the applicant’s F2 it is stated that:

1. Mr Nasr is the primary carer for his elderly mother and father during the COVID-19 pandemic and has been ensuring that he attends all appointments to ensure that they are not at risk as they are in a high risk category due to recent personal illnesses;

2. the applicant has been under significant stress since the termination as he provided financial support to both his mother and father;

3. the applicant's application is just outside the jurisdictional requirement due to these reasons.

[19] On 24 July 2020, the Commission sent correspondence to the applicant and his legal representative setting out the criteria under the Act to be considered by the Commission in extending the time to file his application and asked the applicant for any further details. An email dated 29 July was received which stated:

“As per our client's application, the applicant is the primary carer for his elderly mother and father during the COVID-19 pandemic. The applicant has been primarily responsible for limiting his parents' travel to and from their house as they are in a high risk category due to their age and illnesses. Furthermore, the applicant has been under significant stress since the termination as he provided financial support to both his mother and father.”

[20] A further email of 31 July was also received and stated:

“The applicant's father suffers from renal failure and he attends St Vincent's Hospital three days per week for his dialysis treatment. He also suffers from heart disease and diabetes and requires the applicant to take him to his ongoing visits to the hospital and specialist doctors located in the CBD and Bondi Junction. The applicant's mother suffers from high blood pressure and requires support from the applicant for her trips to local stores, daily errands and doctors’ appointments.”

[21] Mr Nasr, who gave evidence, stated that he had been providing care to his parents for some considerable time, which included while he had been working full time. Under cross-examination, Mr Nasr stated that caring for his parents was only part of the reason for his late filing and stated he had been stressed and under pressure and was unsure of whether he wished to go down the path of filing an unfair dismissal application.

[22] The employer states that the applicant has failed to provide a sufficient reason for the delay in filing the application. It is submitted by the employer that his carer responsibilities do not impact on the timing of the lodgement, which is done in a technological environment, and the reasons do not create an exceptional circumstance. It was further put that the reason provided in relation to caring for his parents was not consistent with information he had previously provided to his employer before his dismissal.

[23] It is accepted by the Commission that Mr Nasr has carer responsibilities and has been under stress since his dismissal. Mr Nasr's evidence, however, did not satisfactorily explain how his carer responsibilities prevented his unfair dismissal application being filed within the 21-day time frame. Further, for most employees, the time immediately after the dismissal is a stressful period and therefore not a rare occurrence.

[24] On what has been put before me by Mr Nasr, I am not satisfied that he has provided an explanation for the delay that is a consideration on its own, which establishes exceptional circumstances.

Whether the applicant first became aware of the dismissal after the date it took effect

[25] In respect to when the applicant first became aware of his dismissal, he was advised on the day that it occurred, being 19 June 2020. As such, Mr Nasr has had the full 21 days available in which to file his unfair dismissal application.

Action taken to dispute the termination

[26] In respect to any action taken by the applicant to dispute the dismissal, there is no evidence before the Commission to indicate that the applicant has taken any action to dispute his dismissal and put the employer on notice, other than to seek legal assistance to file his application, which he has now done.

Prejudice to the employer including prejudice caused by the delay

[27] In respect to prejudice to the employer caused by the delay, the employer does not contend that it would suffer any prejudice should the application proceed despite being filed outside the statutory time period and I find that there would be no prejudice to the employer in granting the application sought by the applicant.

Merits of the application

[28] In respect to the merits of the application, the employer submits that the application lacks merit and that the dismissal resulted from serious performance issues and a failure by the applicant to comply with policies and procedures. Both parties made further statements on the merits during the telephone hearing this morning.

[29] Having heard what was put this morning, the merits of the application turn on contested points of fact which would need to be tested at a hearing if an extension of time were granted and the matter were to proceed. It is therefore not possible to make any firm or detailed assessment of the merits at this early stage. In this case, both parties are adamant in their respective positions and, as such, this is a neutral factor in considering whether exceptional circumstances exist.

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

[30] As to fairness between the applicant and other persons in a similar position, neither party addressed this matter. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Nasr and other persons in a similar position and I also consider this to be a neutral consideration in the present matter.

Conclusion

[31] In conclusion, it is clear that the 21-day statutory time limit applicable to the exercise of an employee's right to bring an unfair dismissal remedy application is an expression of parliament's intention that this right should be exercised promptly so as to bring about certainty. The reason for a time limit is that the employer should be able to know if there is a question about their action to terminate an employee and, in this case, in relation to Mr Nasr's dismissal. The right to question whether the dismissal was unfair is to be exercised within 21 days; otherwise the right to bring the action is lost, except where exceptional circumstances can be established and the Commission also considers it appropriate to extend the time period for filing.

[32] I have considered all the matters which the Commission is required to take into account under sub-s.394(3) of the Act and, while accepting that the delay is not great, the circumstances, as disclosed by the material and submissions advanced by Mr Nasr, are not to be classed, in my view, as out of the ordinary course, unusual, special or uncommon and, therefore, there is no real basis upon which to consider whether I should exercise my discretion to extend the time allowed for making the application.

[33] I am thus not satisfied that there exist any factors, in isolation or in combination, that could justify a finding of exceptional circumstances which would warrant the Commission granting an extension of four days to the statutory time limit as sought by Mr Nasr. I therefore decline to grant the extension of time and the application for an unfair dismissal remedy must therefore be dismissed as having been filed outside the prescribed legislated period.

DEPUTY PRESIDENT

Appearances:

A Lovelock, Solicitor for the Applicant, Foulsham & Geddes Pty Ltd
R Mifsud, Manager Industrial Relations, People and Culture on behalf of Sydney Water Corporation

Hearing details:

Sydney by Telephone

2020
24 August

Printed by authority of the Commonwealth Government Printer

<PR722273>

 1   It is noted that the Decision was handed down by telephone due to the Fair Work Commission’s COVID-19 social distancing requirements, with both parties in attendance by telephone for the duration of the delivery of the Decision

 2   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 3   [2014] FWCFB 2288 at [21]

 4   [2011] FWAFB 975 at [13]