Mr Karim Ahmed v RACV Pty Ltd T/A RACV

[2013] FWC 8309

[2013] FWC 8309

FAIR WORK COMMISSION

DECISION

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

Mr Karim Ahmed
v
RACV Pty Ltd T/A RACV
(C2013/6168)

COMMISSIONER ROE MELBOURNE, 23 OCTOBER 2013

Application to deal with contraventions involving dismissal - jurisdiction: extension of time.

[1] On 25 September 2013 the Applicant, Mr Karim Ahmed, made an application under Section 365 of the Fair Work Act 2009 (the Act) alleging contravention involving dismissal by the Respondent, RACV Pty Ltd T/A RACV.

[2] The Applicant was employed by the Respondent from 24 January 2007 until 12 November 2012. Although the time period for the making of the application is now 21 days it was 60 days at the time the employment relationship ended. The Application is therefore approximately seven months late.

[3] It is not in contention that the Applicant wrote an email resigning his employment on 12 November 2012. In that letter he referred to issues of discrimination, victimization and adverse action and to the effect that this had had on his health and he said that he was therefore left with no option but to resign. He stated that he regarded this as a constructive dismissal. The Applicant had last been at work about a week and half before 12 November 2012 and at the time of writing he was in Egypt due to the illness of his mother. The RACV responded in a letter dated 16 November 2012. In that letter the RACV outlined the actions they say they had taken to support the Applicant and said that this was not behavior consistent with trying to force the Applicant to resign. The RACV stated that although they were prepared to accept the resignation they would only do so on the basis said that the Applicant had not been forced to resign. The Applicant accepted in the proceedings that the letter provided him with an opportunity to seek to withdraw his resignation. The Applicant did not respond to the letter and the next action that the Applicant took to dispute the termination/resignation was when he made this Application on 25 September 2013.

[4] This decision deals with the jurisdictional objection raised by the Respondent concerning extension of time. At the conclusion of the hearing on 11 October 2013 I advised the parties that I was refusing the extension of time and that I would publish brief reasons for my decision.

[5] The Act provides:

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person 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 person and other persons in a like position.”

[6] I adopt the approach to the question of exceptional circumstances for the extension of time taken by Vice President Lawler:

“In summary, the expression “exceptional circumstances” 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.” 1

[7] The Applicant said that the reason for delay was due to illness. The Applicant said that his illness which had some relationship to the matters which he complained about in respect to his treatment at work had led to him being unable to make the Application and also had led to other financial difficulties. The Applicant was also overseas for six months from the time of the ending of the employment relationship. For part of that time, but not for all of that time, he was with his mother who was ill. The Applicant presented documentary evidence concerning his illness and also concerning his financial difficulties.

[8] The Applicant accepts that he did not take any action between November 2012 and September 2013 to dispute the ending of the employment relationship. He says that this was for the same reasons as those he says led to the delay in making the application.

[9] I am satisfied that there is significant prejudice to the employer given the very long period since the employment relationship was ended. The Applicant says that this should be weighed against the merits of his application.

[10] I have serious doubts that the ending of the employment relationship was a constructive dismissal given the letter of response by the RACV to the resignation letter of the Applicant. However, the Applicant argues that other adverse action was taken against him. I make no finding about the merits of the matter as I have not sufficiently considered the material in support of the application nor the material in defence. I regard this as a neutral factor.

[11] There was nothing before me that suggests that Section 366(2)(e) is relevant in this case.

[12] The most important factor in this case is the reasons for the delay. I am not satisfied that the reasons for the delay constitute exceptional circumstances. The fact that the Applicant was overseas for a period explains some of the delay but he was back in Australia for three or four months prior to making the Application. The Applicant was well enough to complete a Cambridge English Certificate course which lasted one month during June and July 2013. The medical evidence provided does not establish that the Applicant was incapable of making the Application throughout the period from November 2012 until September 2013. Much of the medical evidence related to the period of time when the Applicant was employed by the Respondent.

[13] Taking all of the factors into consideration I am satisfied that there are no exceptional circumstances warranting an extension of time.

[14] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

The Applicant represented himself.

Mr R Marasco with Ms E Hickson appeared for RACV.

Hearing details:

2013

Melbourne

October 11

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848 at para 10.

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