Mr Khaled Odat v Rasier Pacific Pty Ltd

[2021] FWC 4389

[2021] FWC 4389

FAIR WORK COMMISSION

DECISION

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

Mr Khaled Odat
v
Rasier Pacific Pty Ltd
(U2021/4298)

COMMISSIONER RIORDAN SYDNEY, 22 JULY 2021

Application for an unfair dismissal remedy.

[1] On 21 April 2021, Mr Kahled Odat’s (the Applicant) services were terminated by Rasier Pacific Pty Ltd (the Respondent).

[2] On 19 May 2021, the Applicant filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).

[3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Fair Work Commission allows.

[4] The 21-day statutory period in which the Applicant had to file an unfair dismissal application expired on 12 May 2021. The Application was filed 7 days outside of the statutory time frame. This decision addresses whether the Applicant should be granted a further period in which to lodge his Application.

[5] The matter was listed for Hearing by telephone on 30 June 2021. At the Hearing, the Applicant represented themself and the Respondent was represented by Mr Cameron Loughlin, the Respondent’s Legal Counsel.

Legislation

[6] The relevant section of the Act is section 394.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.

A Brief Summary of the Applicant’s Submissions and Evidence

[7] On 3 June 2021, the Commission wrote to the Applicant asking him to outline why he believed he had exceptional circumstances within the meaning of section 394(3) of the Act.

[8] On 8 June 2021, the Applicant responded to the Commission providing the following reasons:

1. The Applicant stated he was initially prevented from lodging an application, as he was unaware of which agency to file an official complaint to. He stated further, he did not have sufficient contact details for the Respondent entity, despite efforts to obtain that information; and

2. The Applicant claimed he was suffering poor mental health at the time of his alleged dismissal, for which he had undergone sessions with psychiatrists and counsellors. The Applicant stated that following his dismissal, his mental health had significantly deteriorated, and he had thoughts of ending his life. The Applicant stated he was also struggling to support himself in the circumstances and withdrew from his university studies.

[9] In support of his claim that he was suffering poor mental health, the Applicant annexed a medical certificate from Dr Jennifer Bowler dated 25 May 2021. The medical certificate contained the following passage:

“Mr Khaled Odat has a serious medical condition which is negatively and profoundly affecting his ability to attend to his universit (sic) studies and assessments. He is seeking to withdraw from his subjects for this term and the purpose of this certificate is to support his application upon medical grounds. It is to cover his studies from 25/05/2021 to 30/06/2021 inclusive.”

[10] The Applicant did not provide a witness statement in the matter. Ahead of the Hearing, the Applicant provided additional supporting documentation as follows.

[11] The Applicant provided a mental health discharge letter from Illawarra Shoalhaven Community Health Service. The letter provided the Applicant had been admitted 21 April 2021 for mental health services, after expressing suicidal ideation in the context of interpersonal conflict/racial abuse. The letter provided the Applicant had presented with ongoing depressive symptoms and had stated thoughts of suicide with ‘nil plan or intent’. The letter provided that the Applicant had been agreeable to attend a psychiatrist appointment and be contacted for follow up. The letter included a ‘summary of care’ as follows:

“21/4/21 - Referral received

22/4/21 - 1st party triage attempted, nil answer

25/4/21 - Home visit conducted, nil answer, message left to please call ICMH

26/4/21 - Phone call, contact made

- denies acute MH concerns

- denies acute risk

- agreeable to complete MH assessment on the 27/4/21

27/4/21 - DNA appointment

- Phone call, nil answer

- Welfare check via Police organised

28/4/21 - Phone call, nil answer

29/4/21 - Home visit, contact established

- nil acute MH concerns

- Centre visit for MH assessment organised for the 4/5/21

3/5/21 - Phone call, no answer

4/5/21 - Attended ICMHS

- Completed MH assessment

- ICMH psychiatrist appointment organised for 17/5/21

6/5/21 - Phone call, nil answer

14/5/21 - Phone call, Contact established

- discussed referral to ICMHRS

- ICMHRS referral completed

- nil acute MH concerns

17/5/21 - Attended Psychiatrist appointment

- discussed referral to Next Steps

- nil acute MH concerns expressed

18/5/21 - Next steps referral completed

20/5/21 - Discussed in clinical review”

[12] The Applicant also provided an assessment document of Illawarra Shoalhaven Local Health District dated 18 May 2021. The document contained answers to screening questions, which provided that the Applicant had engaged with the suicide prevention outreach team on 9 March 2021. The letter contained the following extracts:

“Previous known to Canterbury MH team as BIBP on scheduled to Canterbury Hospital ED as threatening SI on the context of receiving racial slurs while working as an Uber driver and Uber not being support of this as a work provider”

…

“SI expressed due to not being supported and being terminated from Uber”

…

“Brought to ED by police and ambulance in PM, in context of conflict with customer (uber driver)

Outcome was individual lost his employment with Uber

Police report expressing suicidal ideation with plan and intent of using motor vehicle

ED assessment reports invidivudal denies stating same

1 previous presentation to St George’s in Feb 2021, racial conflict with customer increased distress post…”

[13] The letter provided that the Applicant was socially isolated and experiencing feelings of loneliness, which the Applicant had expressed was impacted by Covid-19. The letter provided that the Applicant was not on any medication, but would seek further psychiatrist support.

[14] The Applicant also provided a further medical certificate from Dr Jennifer Bowler, dated 23 June 2021. The letter contained the following passage:

“Mr Khaled Odat presented to me on 21/5/21 with severe Depression. He reported that his symptoms started after experiencing multiple episodes of racial abuse at work (Uber driving), which started on 21/4/21. He has had really severe Depression and has had severe impairment of his functioning and has had to withdraw from fulltime study at university as a result. He went to RPA hospital in Sydney on 21/4/21 with suicidal ideation and was seen by the psychiatry team and referred to community mental health. He saw a psychiatrist and psychologist there. Antidepressants have been prescribed . It is my opinion that he was late to lodge his complaint with the Fair Work Commission about his workplace abuse because of his mental health problems. He had no preexisting history of Depression.”

A Brief Summary of the Respondent’s Submissions and Evidence

[15] The Respondent contended that the Applicant did not meet the threshold of exceptional circumstances. The Respondent stated that there was no valid reason for the delay. As to the medical certificate dated 25 May 2021, the Respondent submitted that it does not cover the period between 24 April 2021 and 19 May 2021, and therefore the Applicant has not provided an explanation for the totality of the delay. 1

[16] As to the other reasons relied on by the Applicant, the Respondent submitted that ignorance of the law is not an exceptional circumstance. 2

[17] As to the merits of the case, the Respondent objected to the Application on the basis that the Applicant was never an employee of the Respondent. The Respondent also stated that the Applicant’s services were terminated following multiple reports from riders over a nine-month period, culminating in an incident on 18 April 2021 when the Applicant allegedly tried to drive into a rider with his motor vehicle following a verbal altercation.

[18] Further to the Hearing in this matter, the Respondent sought to file further submissions. The Respondent outlined that it had relied at hearing on the decision in Gupta v Portier Pacific Pty Ltd 3 as relevant to the consideration of whether the Applicant has a sufficient case for the purposes of s.394(3)(e). The Respondent clarified in its further submissions that the Applicant was a rideshare driver, not a food delivery driver (as was the case in Gupta). The Respondent maintained that the principles of Gupta apply to the present case and are relevant to any assessment for s.394(3)(e).

Consideration

[19] As the Application was lodged outside of the 21-day timeframe prescribed by section 394(2)(a) of the Act, I must be satisfied that exceptional circumstances exist in order to grant a ‘further period’ for the Applicant to submit his application. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[20] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group (Nulty), 4 held:

“[13] 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.”

Section 394(3)(a) - reason for the delay

[21] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis) 5 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly (sic) a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However (sic) the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

[22] The Applicant advanced two reasons for his delay. Firstly, he was unaware of the correct processes and agency in which to lodge an application challenging his alleged unfair dismissal. Secondly, his pre-existing mental health conditions were exasperated by his dismissal leading to withdrawal from university and suicidal ideations.

Unaware of the Commission’s processes

[23] There is nothing ‘out of the ordinary course, unusual, special, or uncommon’ about an Applicant having to make his own enquiries as to the Commission’s processes and timeframes for filing. If the Applicant were to have advanced these reasons alone, then his circumstances would not be considered exceptional. However, this is not the case. As proscribed by Nulty, when determining exceptional circumstances, the Commission must examine the Applicant’s circumstances holistically. The Applicant’s mental health is also a relevant consideration.

Mental health

[24] With respect to an Applicant’s mental capability to prosecute a claim, Deputy President Sams in Underwood v Terra Firma Pty Ltd 6 said at [12]:

“While I am sympathetic to the applicant’s mental condition, elevated levels of stress and anxiety consistent with an adjustment disorder do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view this is unexceptional rather than exceptional.”

[25] In contrast to the above decision, Deputy President Sams in Scott v Steritech Pty Ltd t/a Steritech (Steritech), 7 found that when mental illness becomes incapacitating it may be considered a factor that weighs in favour of a finding of exceptional circumstances. The Deputy President said at [95] – [97]:

“[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period.

[96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal.

[97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.”

[26] Following the reasoning of Deputy President Sams in the above cases, on the basis of the Applicant’s suicidal ideations as outlined in the various medical documents and as confirmed by the medical certificate of 23 June 2021, I am satisfied that these circumstances sit outside the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Odat’s circumstances fell outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.

[27] I note that the Applicant provided medical evidence and corroborating letters from his general practitioner dated 25 May and 23 June 2021. I am satisfied that the Applicant’s mental health following his termination was so debilitating that an extension of time would be warranted.

[28] I find that, having regard to all of the circumstances, including the medical evidence provided by the Applicant, the Applicant has provided a credible explanation for the entirety of the delay. This weighs in favour of finding an exceptional circumstance exist in this matter. I have taken this into account.

Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[29] The Applicant was aware of his alleged dismissal at the time it took effect.

[30] This is a neutral consideration that I have taken into account.

Section 394(3)(c) any action taken by the person to dispute the dismissal

[31] There is no evidence the Applicant disputed his alleged dismissal directly with the Respondent.

[32] This is a neutral consideration that I have taken into account.

Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[33] The Respondent did not make any submissions, addressing whether they would be prejudiced as a result of the Applicant being allowed to file the Application.

[34] This is a neutral consideration that I have taken into account.

Section 394(3)(e) the merits of the application

[35] It would be inappropriate for me to make any findings on this contested matter without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd 8stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

[36] This is a neutral consideration that I have taken into account.

Section 394(3)(f) fairness as between the person and other persons in a similar position

[37] Neither the Applicant or the Respondent made any submissions with respect to fairness as between the Applicant and other persons in a similar position.

[38] This is a neutral consideration that I have taken into account.

Conclusion

[39] The Respondent advised the Commission that it had contacted the police on the 21 April 2021, after being made aware by the Applicant of his suicidal tendencies. This resulted in the Applicant being transported to hospital via ambulance.

[40] The Applicant has provided detailed medical information in relation to his mental incapacity immediately following his termination. Further, the Applicant’s doctor has provided a medical certificate as outlined at paragraph [14] of this decision, verifying his incapacity for the entire period between the Applicant’s termination and application. I am satisfied that the Applicant has provided sufficient reasons for the Commission to conclude that an exceptional circumstance existed for the Applicant to be provided with an extension of time to lodge his Application.

[41] I find that exceptional circumstances existed, to warrant an extension to the actual date of filing being 19 May 2021.

[42] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR732000>

 1   Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] and Gibbings v Coles Supermarkets Australia Pty Ltdand Liquorland (Australia) Pty Ltd[2016] FWC 3710 at [25]).

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 3   [2020] FWCFB 1698.

 4   [2011] FWAFB 975.

 5   [2018] FWCFB 901.

 6   [2015] FWC 1387.

 7   [2019] FWC 2970.

 8   (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421.